Patterico's Pontifications

12/9/2020

Texas Files Shamefully Meritless Lawsuit to Toss Out Election Results in Four Other States, Plus Bonus Ted Cruz Self-Beclowning

Filed under: General — Patterico @ 8:29 am



If I were a Texas taxpayer, I would be very mad about this. Here’s their press release:

Texas Attorney General Ken Paxton today filed a lawsuit against Georgia, Michigan, Pennsylvania and Wisconsin in the United States Supreme Court. The four states exploited the COVID-19 pandemic to justify ignoring federal and state election laws and unlawfully enacting last-minute changes, thus skewing the results of the 2020 General Election. The battleground states flooded their people with unlawful ballot applications and ballots while ignoring statutory requirements as to how they were received, evaluated and counted.

This preposterous lawsuit, filed directly in the Supreme Court and invoking its original jurisdiction, does not have a prayer of success. It is based on absurd arguments, such as this:

The probability of former Vice President Biden winning the popular vote in the four Defendant States—Georgia, Michigan, Pennsylvania, and Wisconsin—independently given President Trump’s early lead in those States as of 3 a.m. on November 4, 2020, is less than one in a quadrillion, or 1 in 1,000,000,000,000,000. For former Vice President Biden to win these four States collectively, the odds of that event happening decrease to less than one in a quadrillion to the fourth power (i.e., 1 in 1,000,000,000,000,000).

Statistics! Wow! I’m convinced!

It bears mention that Paxton has been under indictment for securities fraud since 2015, and has more recently been accused by seven aides of having engaged in “improper influence, abuse of office, bribery and other potential criminal acts.”

Meanwhile, Texans, your junior senator continues to beclown himself, having announced that he was eager to argue the now-rejected lawsuit filed by Congressman Mike Kelly to invalidate results in Pennsylvania. This was a lawsuit that argued that the Republican legislature in Pennsylvania violated the state constitution with a law regarding mail-in ballots, and that the Pennsylvania Supreme Court somehow violated the federal constitution by throwing out the lawsuit. How Cruz was going to argue that the U.S. Supreme Court is a more appropriate body to determine the meaning of Pennsylvania’s state constitution than the Supreme Court of Pennsylvania . . . well, let’s just say that I’m a bit miffed that the Supreme Court has deprived us of the chance to watch Ted Cruz dig that hole of ignominy even deeper.

I am considering a lawsuit against Cruz to get back the money I donated to him in 2016. (Narrator: Patterico is not serious here.) I’m serious. (Narrator: he is not.) Cruz is a fraud, and he further exposes the depth of his fraudulent nature with literally every passing day. When the person you donated to turns out to be a fraud, isn’t that a legal basis to get your donation back? (Narrator: it is not.)

Yesterday I closed a post by asking what is going on with the Republican party, and appended two question marks to the end of the question to emphasize my befuddlement. In that vein:

Texans, what is going on in your state???

166 Responses to “Texas Files Shamefully Meritless Lawsuit to Toss Out Election Results in Four Other States, Plus Bonus Ted Cruz Self-Beclowning”

  1. Trump has been great for GOP leaders. The Freedom Caucus has gone toothless. The rank and file is in line. There are no longer those embarrassing conversations about whether leader A or B is insufficiently pure, so long as they agree that Trump is the font of all GOP-ism.

    The GOP leaders have paid no price and have a more peaceful life.

    Appalled (1a17de)

  2. There are no longer those embarrassing conversations about whether leader A or B is insufficiently pure, so long as they agree that Trump is the font of all GOP-ism.

    A Banana Republican is a happy warrior!

    Dave (1bb933)

  3. I Can’t think of a better way for Paxton to get a pardon.

    Time123 (af99e9)

  4. It’s tough when people live in alternate, (unreal) realities.

    Given that a lot of people in our country right now believe that there is clear and overwhelming evidence of that democrats stole the election for Biden, it follows that these lawsuits are important and meritorious.

    If all the lower courts keep finding against these claims it must be that the judges are democrats, democrat enablers, corrupt, or maybe there is some arcane technicality that is applying (but shouldn’t and won’t at the Supreme Court).

    These people standing up to our (now revealed to be) corrupt legal system, our (now revealed to be) corrupt elections, our (now revealed to be) illegitimately democratically elected officials are the true patriots and anyone who isn’t ready to burn down the country is an enemy of the country.

    What’s the alternative? That they are wrong, have been listening to people lying to them for years, and have been wrong for years? That can’t be right.

    nate (1f1d55)

  5. Yeah, I can’t even believe SCOTUS is even entertaining this and I foresee another 9-0 dismissal.

    whembly (c30c83)

  6. I never liked Cruz from Minute One. I saw right through to his vertebrae the kind of man he is.
    After this joke of a lawsuit is dispatched, then everything after can simply be put in the “frivolous” column.

    Paul Montagu (c52948)

  7. Yeah, I can’t even believe SCOTUS is even entertaining this and I foresee another 9-0 dismissal.

    As of yet, SCOTUS is not even entertaining it. The MAGAts boasting about the suit being “docketed” are literally just bragging that they were able to submit an electronic form (which, given Sidney Powell’s difficulties with something so trivial, I can understand them being proud of). SCOTUS still has to grant leave to actually file the suit, which they’re not going to do (though for esoteric procedural reasons it might not be 9-0).

    (Not That) Bill O'Reilly (6bb12a)

  8. Speaking of banana republic states and political parties…..

    Crime is running rampant in San Francisco, tech companies are fleeing and rents are down 35%.

    Raise your hand if you voted for this for the whole country.

    https://twitter.com/michelletandler/status/1336698291992449025?s=20

    https://www.bloomberg.com/news/articles/2020-12-08/san-francisco-apartment-rents-drop-35-as-tech-embraces-remote-work-during-covid
    _

    harkin (8fadc8)

  9. @7, You second link says that rent is falling because more people are able to work remotely. I think it would be great if there were more of that.

    Time123 (89dfb2)

  10. Mr. Senator Ted Cruz (R-42nd Street), who bears a remarkable resemblance to Linda Sansour even with the beard, is placing far too much faith in the services of this place in Beverly Hills, I think.

    nk (1d9030)

  11. Re: crime running rampant

    So, let’s see.

    One party is allegedly responsible for a dozen smashed car windows. If Republicans ran SF, it would be crime-free, I’m sure.

    The other is attempting to steal an entire national election and disenfranchise 80 million voters. Raise your hand if you voted for this.

    Dave (1bb933)

  12. And Mr. harkin is feeling sorry for San Francisco. What has this world come to?

    nk (1d9030)

  13. youre a very bad person mr nk

    Dave (1bb933)

  14. Once, I was willing to forgive and forget being taken in by Cruz’s kittenish coyness, Mr. Dave. But that was 290,000 dead Americans ago.

    nk (1d9030)

  15. NV Supreme Court denies Trump campaign lawsuit seeking overturn of presidential election
    The Nevada Supreme Court has ruled unanimously to dismiss an appeal filed by President Donald Trump’s campaign seeking to overturn the state’s presidential election results.

    Members of the court wrote in a 6-0 opinion published late Tuesday that the Trump campaign had failed to show any serious errors or flaws in Carson City District Court Judge James Russell’s order last week that would warrant a reversal. Russell’s order denied the campaign’s election contest lawsuit amid findings that the campaign had not backed up its claims of mass voter fraud throwing the state’s presidential election results into doubt.

    The three page order states that the Trump campaign failed to identify any direct “unsupported factual findings” in Russell’s order that it wished to challenge under the appeal, and the court itself has “identified none.”
    …….
    Winning!

    Rip Murdock (d2a2a8)

  16. I don’t see any problems here, no sir. This is just part of the legal process to see if there’s fraud, ya know? How can you oppose efforts to make sure our elections are on the up and up? Also Hillary did something bad once, or something.

    johnnyagreeable (c49787)

  17. @15 Don’t forget “whatabout russia”?!?!?

    Time123 (89dfb2)

  18. Take a look at this Twitter thread regarding an amicus brief for this petition that, according to a House GOP member, Trump asked all Republican House and Senate members sign. The email states that Trump is “anxiously awaiting the final list” of signers.

    Will this list dictate who gets Trump’s support as GOP kingmaker?

    JohnnyAgreeable (c49787)

  19. I think the Texas lawsuit will fail and will not change the legitimate outcome of this election. I also think Paxton is fishing for a TRUMP pardon. Further, I think Cruz is self-centered and disappointing. But I don’t think the lawsuit is as much of a joke as the other legal cases:

    The Texas motion and supporting brief are well-drafted and make a plausible case–importantly, one that, if accepted, does not require extensive fact-finding into alleged voter fraud. Reduced to its essentials, the motion alleges 1) that under the Constitution’s Electors Clause, state legislatures have plenary authority over appointment of each state’s electors; 2) that in each of the defendant states, non-legislative actors (e.g., the Secretary of State) unconstitutionally changed the rules governing this year’s election without legislative approval or ratification; 3) that these changes favored some voters over others, in violation of the Equal Protection Clause; and 4) in each state, the number of ballots that were counted pursuant to unconstitutional changes in election procedures exceeds the margin of Joe Biden’s alleged victory.

    DRJ (aede82)

  20. Those are the kinds of questions that should be addressed.

    DRJ (aede82)

  21. Don’t forget “whatabout russia”?!?!?

    Not enough question marks, for my taste. A REAL patriot knows that this question has to be followed with at least ten question marks. Otherwise it just sounds sarcastic!

    JohnnyAgreeable (c49787)

  22. I can’t think of very many people particularly upset if San Francisco rents come down.

    What is also interesting is how the Texas lawsuit is now the new touchstone. Attorney Generals of Louisiana and Arkansas have pledged their support (though I don’t think they’ve signed on) as well as the Republican candidates for Senate in Georgia, even though the lawsuit seeks to annul the Georgia election. Remember if you don’t commit yourself fully to the latest Trump inspired foolishness then you’re not really loyal are you?

    The measure of its stupidity is the measure of your faith.

    Victor (4959fb)

  23. Donald J. Trump
    @realDonaldTrump
    ·
    5h
    We will be INTERVENING in the Texas (plus many other states) case. This is the big one. Our Country needs a victory!
    Replies

    ·

    Trump Voter 🇺🇸
    @TrumpVoterWTF5h
    Replying to
    @realDonaldTrump
    DONALD SIR, I’M PROUD TO SAY THAT I JUST CASHED OUT MY KIDS’ COVERDELL ESA & 529 COLLEGE SAVINGS PLANS TO DONATE TO YOU & YORE ELECTION DEFENSE FUND!💸

    YOU AS OUR PRESIDENT FOR THE NEXT 4 YEARS (HOPEFULLY MORE) WILL DO MORE FOR THEIR FUTURE THAN 4 YEARS OF COLLEGE. SO TRUE!

    A fool and his money etc., but to punish their kids’ education and future-oh brother.

    Rip Murdock (d2a2a8)

  24. @21, I’d hate to come across as sarcastic.

    Time123 (89dfb2)

  25. Thank you for your comment, DRJ, explaining this case has a point. I agree Cruz is a real disappointment. Hopefully he’ll be the last one to fool me.

    Dustin (4237e0)

  26. I think the Texas lawsuit will fail…..
    It won’t get pass GO. I doubt there will be any arguments beyond the briefs.

    Rip Murdock (d2a2a8)

  27. I think the Texas lawsuit will fail. I also think Paxton is fishing for a TRUMP pardon. Further, I think Cruz is self-centered and disappointing. But I don’t think the lawsuit is as much of a joke as the other legal cases:

    No, it’s still a joke. Everything that is contained in your summary is fine so far as it goes, except it ignores obvious alternative routes.

    Just at the start, point (2) regarding “non-legislative actors . . . unconstitutionally chang[ing] the rules” is something that can, and was, addressed to the State courts. That Texas doesn’t like how the courts resolved those challenges is completely irrelevant.

    And then trotting out EPC issues as a way around that? No dice. You could make this *same* argument in any case by linking it back to an issue of federal constitutional rights. Suppose that Florida does not like the way that Oregon’s constitution provided that non-unanimous verdicts in criminal cases was acceptable. Florida thinks Oregon got it wrong and that it violates the EPC. So what? It has no say in the matter. That’s federalism 101.

    I suppose the answer to that is the “effects” of what happened in Oregon are entirely local whereas what these other states are doing effects Texas. But wait, couldn’t the US Supreme Court just accept a case that decided a State lawsuit (see previous paragraph) if in fact it involves federal issues? Yes, it could.

    JohnnyAgreeable (c49787)

  28. The measure of its stupidity is the measure of your faith.

    All the Nigerian Prince letters I have seen are obvious fakes. To me. Bad grammar, bad spelling, fictitious places, unbelievable scenarios. It’s on purpose. It sieves out the people marginally intelligent enough not to fall for the scam. Ditto da Trumpadoodles.

    nk (1d9030)

  29. Steve Vladeck
    @steve_vladeck
    ·
    Dec 8
    It looks like we have a new leader in the “craziest lawsuit filed to purportedly challenge the election” category:

    The State of Texas is suing Pennsylvania, Georgia, Michigan, and Wisconsin *directly* in #SCOTUS.

    (Spoiler alert: The Court is *never* going to hear this one.)

    Steve Vladeck
    @steve_vladeck
    ·
    Dec 8
    Although the Supreme Court has “exclusive” jurisdiction over disputes between states, it does not automatically hear all such cases.

    Rather, states have to receive “leave to file,” which usually requires showing that there’s no other forum in which these issues can be resolved.
    Steve Vladeck
    @steve_vladeck
    ·
    Dec 8
    ……
    Dec 8
    And as others have pointed out, it’s more than a little telling that Kyle Hawkins — the Texas Solicitor General, who represents the State before #SCOTUS — is not on the filings.

    Good for him for refusing to associate himself with this utter and indefensible nonsense.
    Steve Vladeck
    @steve_vladeck
    ·
    Dec 8
    Anyway, it takes five votes to grant a motion for leave to file — which isn’t going to happen.

    And it’ll take some time. So chalk this up as mostly a stunt — a dangerous, offensive, and wasteful one, but a stunt nonetheless.

    Rip Murdock (d2a2a8)

  30. Bah….meant to say ” something that can be” and “affects Texas”

    JohnnyAgreeable (c49787)

  31. On first day as L.A. County D.A., George Gascón eliminates bail, remakes sentencing rules

    That’s insane if it’s true. But it appears that the policy eliminates cash bail, meaning that some offenders may still be held without bail, such as an accused murderer. (Also, I don’t know how it works in LA but doesn’t the judge set bail with input from the DA? It would seem weird to say that a judge is bound by what the DA decides. Is the policy that the DA won’t recommend cash bail anymore?)

    In any case, it strikes me as a bad policy. I don’t know the situation out there but in my neck of the woods I tend to think that cash bail is too often used as a tax on the poor. But the solution isn’t to swing to a wild extreme the other way.

    JohnnyAgreeable (c49787)

  32. The only role for the courts in a Presidential election should be swearing in the new President and Vice President. The voters, not lawyers, choose the President. Just because some New York sewer rat has made a habit of suing his way through life, it doesn’t mean he has the right to have judges decide whether he should be President or not.

    nk (1d9030)

  33. @32 JohnnyAgreeable, The article makes it clear that a judge is not bound by the DA’s input. “Ultimately, it is up to a judge to decide whether to impose bail, which is allowable under state law. Judges, however, typically will defer to a prosecutor’s recommendation when setting the conditions under which a defendant will be released while awaiting trial.”

    JoeH (f94276)

  34. @32 JohnnyAgreeable, The article makes it clear that a judge is not bound by the DA’s input. “Ultimately, it is up to a judge to decide whether to impose bail, which is allowable under state law. Judges, however, typically will defer to a prosecutor’s recommendation when setting the conditions under which a defendant will be released while awaiting trial.”

    I generally try to adhere to the policy of reading the link before commenting, but when I noticed that the headline was wildly inaccurate I stopped. I know authors aren’t responsible for the headline, but it doesn’t give me much faith.

    An accurate headline would be “…enacts policy eliminating requests for cash bail,”. I know it’s impossible to capture all the nuances, but the headline makes it sound like he eliminated bail for all cases, as if he had the power to do so.

    JohnnyAgreeable (c49787)

  35. “I never liked Cruz from Minute One”

    He’s smart as a whip, but he’s continuously playing politics…and trying to position himself for higher office. His waiting to unload on Trump during the 2016 primary was vintage Cruz….and what he’s doing now is just embarrassing. Obviously he’s a better choice than Trump in 2024….who isn’t….but I’m waiting for GOP governor candidates….people who have to make budgets and run a state and work with a legislature. Senators are better than House critters…but these days, not by much. Not a lot of leadership…or rising above. I can’t imagine supporting someone who did not at least take impeachment seriously…that’s a short list of GOP Senators.

    AJ_Liberty (ec7f74)

  36. @19

    I think the Texas lawsuit will fail and will not change the legitimate outcome of this election. I also think Paxton is fishing for a TRUMP pardon. Further, I think Cruz is self-centered and disappointing. But I don’t think the lawsuit is as much of a joke as the other legal cases:

    The Texas motion and supporting brief are well-drafted and make a plausible case–importantly, one that, if accepted, does not require extensive fact-finding into alleged voter fraud. Reduced to its essentials, the motion alleges 1) that under the Constitution’s Electors Clause, state legislatures have plenary authority over appointment of each state’s electors; 2) that in each of the defendant states, non-legislative actors (e.g., the Secretary of State) unconstitutionally changed the rules governing this year’s election without legislative approval or ratification; 3) that these changes favored some voters over others, in violation of the Equal Protection Clause; and 4) in each state, the number of ballots that were counted pursuant to unconstitutional changes in election procedures exceeds the margin of Joe Biden’s alleged victory.

    DRJ (aede82) — 12/9/2020 @ 10:51 am

    I’m not trying to be obtuse, but doesn’t the fact that “state legislatures have plenary authority over appointments of electors” means that even if there are other state laws prohibiting any sort of change, by US Constitution standards, if the legislature wants to change how they do elections, the can irrespecitive of state laws?

    whembly (62ebef)

  37. Lawfare gonna lawfare.

    beer ‘n pretzels (042d67)

  38. Cruz will need the LBJ Law in 2024 if he wants to run for President because he’ll be up for reelection to the Senate too, and if there ever was a reason to repeal it ….

    nk (1d9030)

  39. I’m not trying to be obtuse, but doesn’t the fact that “state legislatures have plenary authority over appointments of electors” means that even if there are other state laws prohibiting any sort of change, by US Constitution standards, if the legislature wants to change how they do elections, the can irrespecitive of state laws?

    whembly (62ebef) — 12/9/2020 @ 11:38 am

    I would assume that state a legislature is bound by their state’s constitution and laws. I suppose they could change the law if they passed the bill and their governor signed it.

    AFAIK no state legislature in our history has set aside the results of a fair presidential election in the past. With or without the support of their governor.

    I further assume that if the framers had intended this they would have been clear about it in the constitution, as they were for the original method to elect the senate.

    To me this looks like Trump doesn’t like losing. He can’t find compelling evidence that the results were from fraud or error so he wants to subvert the voter’s decision and have GOP controlled state legislatures give him the presidency. I don’t think there’s any legal basis or principle at stake other the GOP wants what they want and doesn’t care about the constitution.

    Time123 (89dfb2)

  40. @37-
    It means that states can change the way electors are selected through the normal legislative process. If current law states that electors are appointed based on the election winner, then that is how they are appointed. A legislature cannot aggrandize power unto itself that is contrary to existing state law. They would need to pass a new law, signed by the governor, to change how electors are chosen.

    See McPHERSON v. BLACKER 146 U.S. 1 (1892)

    Rip Murdock (d2a2a8)

  41. @36, I agree with your comments, except that I was more gullible about Cruz’s principals. OTOH, the old Trumper argument that Trump is more honest and caring and selfless than Cruz was patently absurd. (Now, the Trumpers respect Cruz as long as Cruz defends Trump.)
    I think Cruz said he would argue the case before the Supreme Court in the expectation that the Court would not agree to hear it, so he could win accolades from the Trumpers (e.g. Lou Dobbs) but not have to beclown himself further before a court of law.

    Radegunda (20775b)

  42. @43 — I meant to reply to AJ_Liberty @37

    Radegunda (20775b)

  43. Your concern for your fellow Americans felled by the seasonal Chinese plague that you didn’t lift a finger to combat when it was called SARS is duly noted.

    Because SARS had limited impact and disappeared.

    SARS, or severe acute respiratory syndrome, was first noted in Guangdong province, China in November of 2002, when doctors there saw an unusual pneumonia. But the disease was not reported to the World Health Organization at that time.

    In February of 2003, another outbreak occurred in Hanoi, Vietnam, and a WHO officer, who later died, examined a patient there and reported a large outbreak to the WHO main office on March 10, 2003.
    ……
    From that point, SARS spread to much of the world, although most cases remained in Asia. The virus was aggressive and lethal. Patients typically showed symptoms within two to three days. There were few reports of any infections without symptoms, as there are with COVID-19. The masks came out, temperature scanners were placed in all major public gathering places in China and other parts of Asia, quarantines were implemented, the virus infection peaked in late May of 2003 and then it disappeared. The strict quarantine measures paid off, and by July 2003, the WHO declared the threat over.

    In all there were just over 8,000 cases of SARS-CoV-1, and about 700 deaths. In the U.S. there were a total of just 29 confirmed cases, and no deaths…….
    ……

    Source

    Rip Murdock (d2a2a8)

  44. Good for Texas. Doing their part to ensure they aren’t disenfranchised.

    As for the rest of the real world and not the political world,

    https://restaurant.org/news/pressroom/press-releases/restaurant-industry-in-free-fall-10000-close-in

    Destroying America one business at a time. Politicians and government employees least affected.

    NJRob (c284a1)

  45. I think the Texas lawsuit will fail and will not change the legitimate outcome of this election. I also think Paxton is fishing for a TRUMP pardon. Further, I think Cruz is self-centered and disappointing. But I don’t think the lawsuit is as much of a joke as the other legal cases:

    The Texas motion and supporting brief are well-drafted and make a plausible case–importantly, one that, if accepted, does not require extensive fact-finding into alleged voter fraud. Reduced to its essentials, the motion alleges 1) that under the Constitution’s Electors Clause, state legislatures have plenary authority over appointment of each state’s electors; 2) that in each of the defendant states, non-legislative actors (e.g., the Secretary of State) unconstitutionally changed the rules governing this year’s election without legislative approval or ratification; 3) that these changes favored some voters over others, in violation of the Equal Protection Clause; and 4) in each state, the number of ballots that were counted pursuant to unconstitutional changes in election procedures exceeds the margin of Joe Biden’s alleged victory.

    I respectfully but strongly disagree. While such questions might be valid in the abstract, in reality the lawsuit simply realleges a bunch of stuff that has already been rejected by courts throughout the country. The standing is non-existent, the relief sought is outrageous, and allowing a suit like this would open the floodgates for states to sue one another over all kinds of things. I confidently predict this is going nowhere, Hinderaker’s opinion notwithstanding.

    I’d be happy to place a large wager on it with him if he wants to put his money where his mouth is. I doubt he would take me up on it.

    Patterico (115b1f)

  46. Good for Texas. Doing their part to ensure they aren’t disenfranchised.

    LOL. That’s an Orwellian way of putting their efforts to throw out the votes of people from four other states. Just goes to demonstrate that NJRob favors a proposed coup if said proposed coup favors his preferred politician.

    Republicans: Voters Can Get Bent!

    Patterico (115b1f)

  47. @43 — I was more gullible about Cruz’s PRINCIPLES. (I momentarily misplaced my handy mnemonic device.)

    Radegunda (20775b)

  48. Meanwhile, YouTube has decided to censor videos asserting widespread election fraud.

    YouTube on Wednesday announced changes to how it handles videos about the 2020 presidential election, saying it would remove new videos that mislead people by claiming that widespread fraud or errors influenced the outcome of the election.

    The company said it was making the change because Tuesday was the so-called safe harbor deadline — the date by which all state-level election challenges, such as recounts and audits, are supposed to be completed. YouTube said that enough states have certified their election results to determine that Joseph R. Biden Jr. is the president-elect.

    While I agree that most of this crap is indeed crap, this level of suppressing political speech gives me pause. Were YouTube merely one of a dozen competative video-hosting companies I wouldn’t care, but it is so dominant that what it allows, or forbids, shapes public opinion. Even if one accepts that “it’s a private company, ti can do what it wants”, it shouldn’t be doing this.

    The core of the First Amendment is political speech. It is protected because one person’s political truth is another person’s damned lie. That it protects one from government is near absolute, but it seems meaningless in a world where monopolistic entities control information in a way that government never could.

    Also, today, the United States and 40 individual states sued Facebook on anti-trust grounds. This is not unrelated.

    Kevin M (ab1c11)

  49. I also think that the Texas suit will go nowhere. While there may be some standing in that a false election result would hurt every state, the facts alleged don’t seem to have much evidence and the suit is too late for any but the most emergent and well-documented information to be considered.

    This is political posturing, mostly, for domestic consumption in Texas. It also seems intended to help put an asterisk on Biden’s administration just as the Democrats tried to do to W.

    Kevin M (ab1c11)

  50. Good for Texas. Doing their part to ensure they aren’t disenfranchised.

    Nothing says election integrity like throwing out the votes of whole states.
    But the Trumpers forget that if they throw out whole states, then the total number of electoral votes is less than 538. I saw a post yesterday where someone did the math and found that Biden would still have more than half of that smaller number.

    Radegunda (20775b)

  51. I think Cruz is self-centered and disappointing.

    And on top of that- nobody likes him. 😉

    With apologies to the great Tom Lehrer:

    Gather round while I sing you of Canadian Cruz,
    A man whose allegiance is ruled by expedience;
    Call him unprincipled for changing his views,
    “Principles, schminzables,” coos Canadian Cruz

    Don’t say that he’s hypocritical,
    Say rather that he’s quite political;
    “Fake news takes my picture- have you seen my new beard?
    Memories are short,” coos Canadian Cruz

    Some have harsh words for his bait-and-switch ruse,
    But some say their attitude should be one of gratitude;
    Like the wife and the father; their honor abused,
    So easily betrayed by Canadian Cruz

    “You become a conservative hero;
    Showing Texans you’ll stand up for zero;
    In Alberta ‘oder’ Austin, I want coverage, win or lose,
    Just spell my name Right,” coos Canadian Cruz.

    DCSCA (f4c5e5)

  52. The NYT had the number of states wrong in the Facebook suit. Correction to the link above. Now 46 states and 2 US territories, along with the federal government. Pretty bipartisan.

    Correction: Dec. 9, 2020

    An earlier version of this article misstated the number of states that have filed suit against Facebook. The suits were filed by 46 states as well as the territories of Guam and the District of Columbia. The error was repeated in a headline and an accompanying notification.

    Kevin M (ab1c11)

  53. “While such questions might be valid in the abstract, in reality the lawsuit simply realleges a bunch of stuff that has already been rejected by courts throughout the country.”

    Yes, wrongfully.

    “The standing is non-existent”

    This is literally the only court where the standing exists.

    “the relief sought is outrageous”

    The results were outrageous, the relief has precedence.

    “and allowing a suit like this would open the floodgates for states to sue one another over all kinds of things.”

    Maybe they’ve been abusing their own authority long enough that they’re long overdue for those lawsuits, and a newly-conservative court can make it their first priority to grant relief. Just imagine: each state conducting their elections according to minimum federal standards! Will Pat start defending poll taxes next?

    “I confidently predict this is going nowhere, Hinderaker’s opinion notwithstanding.”

    This is not the year for citing precedents, especially not election precedents.

    Peregrim reaper (1e4837)

  54. I think the Texas lawsuit will fail and will not change the legitimate outcome of this election. I also think Paxton is fishing for a TRUMP pardon. Further, I think Cruz is self-centered and disappointing. But I don’t think the lawsuit is as much of a joke as the other legal cases:

    That’s correct, but only in the same sense of a raging forest fire being not quite as bad as a nuclear holocaust. It’s great that unlike Powell, they managed to correctly file a document that kind of makes sense if you don’t think about it too hard, but that doesn’t mean their theory has any merit.

    (Not That) Bill O'Reilly (6bb12a)

  55. “one in a quadrillion”? The Texas AG is confusing Biden’s chance of winning… with his.

    Nobody told Texas A.G. Paxton that absentee ballots were to be counted last in some of these states? And that Democrats voted absentee in far higher percentages than Republicans? Oh well. I am sure the Supreme Court will let him know.

    noel (9fead1)

  56. I responded to a commenter whom I had banned. I then realized it and deleted his content-free submission and my response.

    Patterico (115b1f)

  57. As for the question “What is going on?”, I don’t know either. I am beginning to think that there is some information that these people have (or think they have) that has not yet reached many of us. Because otherwise I have to conclude that 100 million people have, suddenly, lost their freaking minds. Occam strains at this.

    The best I can come up with is that, rather than losing their minds, they are just desperate. They fear being thrown under the bus, this time forever, with their livelihoods subordinated to the needs of the corporations and international trade, combined with a return to an unmitigated flood of low-wage competition.

    And so, they are willing to believe anything, grasp at any straw. Even the idea that the man who said he’d save them, but didn’t, would do so in a second term. They would be better off looking for an actual champion rather than destroying what Trump has left of the GOP, but I don’t see it ending well for them.

    Kevin M (ab1c11)

  58. Did I read that right? 17 Republican state Attorneys General have joined the Texas AG in this effort? (Including mine.)

    What? Mind boggling. If you didn’t already think that the Republican Party was aiming for a monarchy, you should know it now.

    noel (9fead1)

  59. NJRob Said

    Good for Texas. Doing their part to ensure they aren’t disenfranchised.

    How do you figure this? There has been no finding that there was a state election influence by fraud in any court. The process defined in our constitution was used, and absent new information, appears to have been used fairly.

    Time123 (89dfb2)

  60. While I agree that most of this crap is indeed crap, this level of suppressing political speech gives me pause. Were YouTube merely one of a dozen competative video-hosting companies I wouldn’t care, but it is so dominant that what it allows, or forbids, shapes public opinion. Even if one accepts that “it’s a private company, ti can do what it wants”, it shouldn’t be doing this.

    I agree, it shouldn’t do this.

    Time123 (89dfb2)

  61. I respectfully but strongly disagree. While such questions might be valid in the abstract, in reality the lawsuit simply realleges a bunch of stuff that has already been rejected by courts throughout the country. The standing is non-existent, the relief sought is outrageous, and allowing a suit like this would open the floodgates for states to sue one another over all kinds of things. I confidently predict this is going nowhere, Hinderaker’s opinion notwithstanding.

    I’d be happy to place a large wager on it with him if he wants to put his money where his mouth is. I doubt he would take me up on it.

    I won’t take the wager.
    I also expect this will lead to further performative lawsuits, such as CA suing because they don’t like Texas’s gun laws or something.

    Time123 (89dfb2)

  62. I am beginning to think that there is some information that these people have (or think they have) that has not yet reached many of us. Because otherwise I have to conclude that 100 million people have, suddenly, lost their freaking minds. Occam strains at this.

    It’s not that complicated. If the party collectively agreed that Trump was a mistake, they could get off the train without difficulty. But no one wants to get out ahead of the pack and expose themselves.

    (Not That) Bill O'Reilly (6bb12a)

  63. “I agree, it shouldn’t do this.”

    I agree, we should force them not to do this.

    YouPravda (19ed04)

  64. “such as CA suing because they don’t like Texas’s gun laws or something.”

    The liberal states already act as cabals in other matters, making it official isn’t really going to change their lawfare methods all that much except that their AGs find new papers to sign. The conservatives are simply catching up with their latest tactics.

    “If the party collectively agreed that Trump was a mistake”

    If everyone clapped for what I believe in without an ounce of effort on my part, I’d be happy too.

    YouPravda (1d8b11)

  65. “I agree, it shouldn’t do this.”

    I agree, we should force them not to do this.

    YouPravda (19ed04) — 12/9/2020 @ 1:38 pm

    Sorry comrade. Our system of government respects people’s right to do things we think they shouldn’t with their property.

    Time123 (89dfb2)

  66. YouTube seems willing to allow quite a bit of crazy political speech. Two short weeks ago they allowed yet another video claiming 9/11 was a government conspiracy.

    Was the US government behind the attacks on the World Trade Center in New York on September 11th 2001? This conspiracy theory poses the idea that there wasn’t a terrorist attack from Bin Laden and Al-Qaeda. The theory states that the extreme loss of life was a staged attack on the twin towers by George Bush and his government, so the US and UK could go to war with Iraq to take oil from the country.

    33,779 views – Nov 19, 2020

    https://www.youtube.com/watch?v=XRKawaGWlDw

    Kevin M (ab1c11)

  67. Rather than tell YouTube what to post, we should enforce the anti-trust laws so that they don’t have a stranglehold on what can be posted.

    Kevin M (ab1c11)

  68. The one person in America who wants Trump gone… more than anyone else… is Ted Cruz. But he is still waving his Texas-sized Trump flag for all to see.

    A$$ KISSER. “Stand aside, Lindsey Graham. I got this.”

    noel (9fead1)

  69. Regarding the Google monopoly, I’ve been trying to follow my brother’s advice. He works in the search engine optimization field, and he advocates using Bing for internet searches. I try to do it, but it’s not easy. I keep thinking that I’ll miss something by not using Google. So far I haven’t noticed any misses, yet I still have trepidation.

    norcal (7a31c4)

  70. Overturning this election by a Supreme Court decision? A court, three of which were chosen by Donald Trump.

    Seven million vote margin with three states to spare in the electoral college. Do these Attorneys General ever stop to think what would happen… if they were to succeed?

    noel (9fead1)

  71. Do these Attorneys General ever stop to think what would happen… if they were to succeed?

    It is just part of narrative creation, just like the Black Caucus trying to have W’s election overturned by Congress in 2001.

    Kevin M (ab1c11)

  72. The Supreme Court will dismiss this 9-0. The only question is whether there will be disbarments to follow.

    Kevin M (ab1c11)

  73. I’m not sure how Texans’ votes became disenfranchised by how other states conducted their elections. Trump won by 5.6% in Texas, winning all 38 electoral votes. As I understand it, electors in TX are selected by popular vote, winner take all, and that’s exactly how TX did it, without any interference from the other states.

    Paul Montagu (65077c)

  74. I know some of you poo poo Andrew McCarthy, but he succinctly lays out what I believe is correct as to why this TX case has no merits:
    https://www.nationalreview.com/2020/12/texass-frivolous-lawsuit-seeks-to-overturn-election-in-four-other-states/

    Unfortunately, this will destroy some poster’s belief that McCarthy is a Trump shill…

    whembly (3b5b58)

  75. The one person in America who wants Trump gone… more than anyone else… is Ted Cruz. But he is still waving his Texas-sized Trump flag for all to see.

    It’s like how all the Democrats “signed on” to the New Green Deal. They didn’t want to be on the list of those who didn’t sign that the Netroobs Nation would be flogging for a decade.

    It’s interesting however that Nikki Haley, following some boilerplate about how all the votes should be counted, and the Law should prevail, has been silent as Trump[ continued the hole-digging.

    Kevin M (ab1c11)

  76. Paul,

    I don’t see their arguement wrt disenfranchisement either, but every citizen has an interest in the national outcome, as does every state. If irregularities in other states, where the election was not conducted according to state law, alters the overall electoral vote then Texas has an interest.

    However, you don’t have to argue standing as you can dismiss it for not being brought prior to the election.

    Kevin M (ab1c11)

  77. Then again, the EC was designed to avoid arguments of this sort (e.g. different state franchise rules), so maybe other states just don’t have standing at all even if there is outright open fraud.

    Kevin M (ab1c11)

  78. How the Supreme Court Can Swiftly Dispose of the Texas Lawsuit Seeking to Overturn the Election

    Yesterday, the state of Texas filed a lawsuit essentially asking the Supreme Court to reverse the outcome of the presidential election in four key swing states—Georgia, Michigan, Pennsylvania, and Wisconsin, thereby potentially giving Donald Trump a second term he failed to win at the ballot box. The case has been roundly denounced by legal commentators as utterly lacking in merit. Prominent election law scholar Rick Hasen summarizes some of its defects and concludes that it may be the “the dumbest case I’ve ever seen filed on an emergency basis at the Supreme Court.” Co-blogger Jonathan Adler points out a variety of procedural flaws in the case. David Post highlights its reliance on bogus statistical “analysis.”
    ……
    ……[T]here is precedent for the Court dispensing with state vs. state original jurisdiction lawsuits without a full hearing or opinion. In 2016, that’s exactly what the Court did with a lawsuit filed by Nebraska and Oklahoma seeking to force neighboring Colorado to rescind its legislation legalizing marijuana under state law. The justices disposed of the Nebraska-Oklahoma lawsuit in a one-sentence order. Here it is in all its glory:

    The motion for leave to file a bill of complaint is denied.

    Nothing prevents the Supreme Court from doing the same thing with the Texas case……. Like the Texas case, the Nebraska-Oklahoma lawsuit had no real merit and was roundly denounced by legal commentators across the political spectrum.
    …….
    ……. In an age of grandstanding state AGs, the Court might be inundated with numerous bogus state vs. state lawsuits if all had to be given full consideration, and thereby got the attendant “free” publicity. Blue states could challenge their neighbors’ allegedly lax environmental and gun control laws. Red states could attack blue state laws on drugs and immigration (as Nebraska and Oklahoma did). Both sides could target election laws they disapprove of. And so on. Embattled Texas Attorney General Ken Paxton is far from the only poseur who might relish an opportunity to excite his base with a legally dubious high-profile case, if he or she could be assured of getting it into the nation’s highest court.
    ………

    Rip Murdock (d2a2a8)

  79. Mr. French has something to say about the Texas case.

    Let’s move on to another lawsuit: the extraordinary case filed by the attorney general of Texas in the Supreme Court to challenge the election results in Pennsylvania, Georgia, Michigan, and Wisconsin. There’s one thing that is credible about the case—that it was filed directly at SCOTUS. The Constitution grants the court original jurisdiction to hear cases between states.

    But beyond filing the case in the proper venue, the complaint is woefully deficient. Incredibly, it purports to claim that the election outcome was virtually statistically impossible, featuring a nonsense allegation:

    The probability of former Vice President Biden winning the popular vote in the four Defendant States—Georgia, Michigan, Pennsylvania, and Wisconsin—independently given President Trump’s early lead in those States as of 3 a.m. on November 4, 2020, is less than one in a quadrillion, or 1 in 1,000,000,000,000,000.

    Wait. What?

    The reason Trump ultimately lost when he was leading earlier in the evening is simple—large, heavily-Democratic counties were slower to count their votes, and they didn’t report their totals until later. Moreover, one reason some jurisdictions didn’t report until later is that Republican legislatures prohibited them from counting hundreds of thousands of mail-in ballots before election day. The delay was a product of political choices, not corruption.

    French has more here on the absurd one in a quadrillion “analysis”. The rest.

    The statistical allegation isn’t the entirety of the Texas case, of course, but its mere presence is shocking. The rest of the case suffers from different deficiencies. Texas is challenging the way other state officials have interpreted and applied the election laws of those states. Yet Texas doesn’t have standing to raise those claims. That’s a matter of state law to be settled by litigation between proper parties in the state court of the relevant state.

    In fact, the vast majority of state election disputes don’t even implicate federal law at all. There’s even a legal doctrine (called the Purcell principle after the 2006 case Purcell v. Gonzalez) that admonishes federal judges to restrain themselves from making changes in election law close to an election. Given Purcell, it’s preposterous to think that SCOTUS would both alter election law after the election and toss out the results of the vote.

    I’ll make this short. There is no chance the Supreme Court will grant the relief Texas seeks.

    Ken Paxton, Texas AG, Enemy of Democracy and Potential Felon.

    Paul Montagu (65077c)

  80. There are Trump zombies everywhere. Last night I spoke with a new Chinese acquaintance. She has been in the U.S. for four years, and has a green card application pending. (I’m guessing that it is asylum-based, because she has no relatives who have status in the U.S., and doesn’t seem to have the kind of skills that would qualify her for an employment-based green card.) She doesn’t speak a lick of English, but is very interested in American politics.

    She asked me what I thought about the election, and I foolishly gave her my opinion, whereupon I was treated to a long conversation with all the Trumper propaganda about the election being stolen, and how the Supreme Court can fix things. She’s getting the same spin in Chinese-language media! She thinks that Biden will be weak on China, and that America won’t be the country she so desired when she came here. Here is what blew my mind: She said she’d rather be denied a green card than have Biden as President! Good lord.

    I’ve been reading this blog for years, and always took the doom and gloom about Trump with a grain of salt. (I was even one of those pragmatic Trump voters in 2016.) Now I realize just how pernicious the Trump phenomenon is. First there is the cult of personality. Then there is tyranny.

    norcal (7a31c4)

  81. R.I.P Starship. Delayed launch, good altitude, good descent, insufficient retro on landing and “RUD.”

    https://www.engadget.com/spacex-starship-test-flight-223637824.html

    Kevin M (ab1c11)

  82. If irregularities in other states, where the election was not conducted according to state law, alters the overall electoral vote then Texas has an interest.

    It seems to me that, if a state found serious enough fraud that would affect the outcome, then that particular state has an Attorney General to deal with it, not to mention an FBI and other investigators to assist.

    Stray thought. Since there are some Trump devotees who say it’s okay for the legislatures to wrest the popular vote from the people–after the fact–by taking electoral votes from Biden and giving them to Trump, why even have a popular election in the first place. That approach stinks to me. We should all play by the rules that existed on election day.

    The bottom line to me here is that Trump has decided for awhile that he’s going to refuse to lose, that he’ll refuse to be a one-term loser, so his tack for months was that if he does come up short, he’ll just allege–without a shred of evidence–rigging and massive fraud that “stole” the election from him.

    It’s all a Big Lie. His devoted followers are foolishly swallowing this Big Lie, and his worshippers and enablers are no better in feverishly trying to backfill his Big Lie with baseless and sketchy accusations of funny business. At the judicial level, we know this is a Big Lie because there are now 53 losses in court to one victory, and that victory affected no vote tallies. The TX case will be Loss #54 or higher.
    And worse, his Big Lie is an Enemy of Democracy, undermining our electoral system no less than when Putin tried it four years ago. Far as I’m concerned, Trump is unpatriotic and un-American. It’s always been Trump first, America second, and his ongoing Big Lie is testament to that.

    Paul Montagu (65077c)

  83. norcal (7a31c4) — 12/9/2020 @ 2:55 pm

    . She’s getting the same spin in Chinese-language media! She thinks that Biden will be weak on China, and that America won’t be the country she so desired when she came here. Here is what blew my mind: She said she’d rather be denied a green card than have Biden as President! Good lord.

    Yes, it’s true

    Anti Communists and people in favor of human rights in China are very much pro-Trump, and buying into the Trump lies. They don’t know that much about things, but they do know that the Chinese Communist government seemed to be – they could tell – against Trump. And then there’s the media that do trust. It’s not entirely honest or it’s too hopeful for Trump.

    https://www.nytimes.com/2020/11/30/world/asia/biden-trump-china-asia.html

    A dissident once branded Enemy No. 1 by the Chinese Communist Party is spreading conspiracy theories about the American presidential election.

    Pro-democracy campaigners from Hong Kong are championing President Trump’s claims of an electoral victory.

    This is so, although it is kind of accidental that Trump turned into someone who stood up for human rights in China. Pompeo helped. Trump was only interested in mercantilism. Of course, now, because the virus, and lying about it, maybe cost him the presidency, he has reasons to be personally against the CCP.

    But Biden is no better for the CCP. There is so much of a case against China, including about this virus, that Biden is bound to be anti-China too. If it’s not one thing it’s another thing. He’s got people backing him who care about Xinkiang, about Hong Hong, about carbon emissions, about exports, about Chinese fishing…

    Sammy Finkelman (63d78b)

  84. I think the host has two choices.
    He can either decide not to apply his principles to politicians, or he can choose to apply those principles to politicians and eventually be disgusted.
    Not wanting to put a jinx on Amash, but odds are that if he stays in the game long enough he’ll eventually (if he hasn’t already) pull off some weaselly BS or some other type of failure.

    I assume they are all weasels and then can be pleasantly surprised when they overachieve against the low bar.

    Ted Cruz wants to be President.
    This election dispute and the chance it goes to SCOTUS is a wet dream for a grandstanding lawyer with Presidential ambitions. Trump has a 49% voter base and an operation that Cruz would love to tap into today to help him out 4 years from now. Heck ya he’s gonna suck up into it.

    steveg (43b7a5)

  85. How do you figure this? There has been no finding that there was a state election influence by fraud in any court. The process defined in our constitution was used, and absent new information, appears to have been used fairly.

    Time123 (89dfb2) — 12/9/2020 @ 1:27 pm

    Then the case should be decided in quick fashion. Texas is still doing their part to ensure their citizen’s aren’t disenfranchised. This is a good trial run for what will happen when states try to override the will of their people with the unconstitutional national voter compact.

    NJRob (eb56c3)

  86. Texas is still doing their part to ensure their citizen’s aren’t disenfranchised.

    Ken Paxton is doing his part to receiving a pardon.

    Rip Murdock (d2a2a8)

  87. “because the virus, and lying about it, maybe cost him the presidency”

    The “Covid vote” doesn’t exist, it simply stood as an excuse to go buck wild on mail-in ballot fraud and other forms of open power grabs,

    YouPravda (871ff5)

  88. 88. Texas (and 17 other states) are trying to disenfranchise literally millions of people.

    Sammy Finkelman (63d78b)

  89. 89. I don’t think Covid affected things too much – and economically distressed areas went more for Trump (probably because of fear of lockdowns)

    But Trump could think it did.

    Sammy Finkelman (63d78b)

  90. I also doubt Mr. Hinderaker would take that bet since his post said he thinks this lawsuit is going nowhere. His point and mine is that there is a logical federal issue alleged, unlike the more frivolous issues presented in the other state and federal cases. I think the problem with this case is enforcement, which IMO would normally be remedied by claims against the specific state officials who allegedly acted improperly. Those claims would likely fail in the various state courts on jurisdictional grounds. That is why the proper forum for claims between states is SCOTUS but the subject matter here makes this claim unlikely.

    I doubt the court will take up an election case because of separation of powers.

    DRJ (aede82)

  91. In other words, they may say this this is not a justiciable controversy.

    DRJ (aede82)

  92. Additional Filings in and Additional Thoughts on the Texas Election Suit
    …….
    The first brief supporting Texas to be filed came from 18 state attorneys general, led by Eric Schmitt of Missouri. This is a very squirrelly brief. On the one hand, the brief claims numerous non-legislative officials violated the constitution by making changes to election rules to account for Covid-19 (much like happened in Texas too, shhhh!), that such changes increased the risk of fraud, and that Texas has raised “important questions about election integrity” that the Court needs to address. On the other hand, it confines itself to the Electors Clause claim, never mentions the Equal Protection or Due Process claims, and never endorses the Lone Star State’s call for extraordinary relief or the invalidation of presidential electors.
    ……
    …… Is this is a precedent the AGs who signed on want to set? Do red states really want to create a precedent for blue states challenging their election rules?!? If you doubt that could happen consider that in 1966 Delaware tried to file an Equal Protection claim against New York objecting to the latter’s winner-take-all means of allocating electoral votes. This system, Delaware claimed, diluted Delaware’s electoral votes and the votes of its citizens. By supporting the Texas suit, these AGs are virtually inviting more of this sort of litigation.
    ……
    As promised on Twitter, the President has joined the fray. …… The brief opens by discussing how many American believe the election must have been stolen because Trump increased his share of non-white voters and won bellwether states (Ohio and Florida) and bellwether counties. It has a section of “additional facts” that is focused on Georgia, and claims that the rate at which absentee ballots were rejected in Georgia dropped precipitously. Yet these claims are directly contradicted by the Georgia Secretary of State……

    On the legal issue, the (John) Eastman/Trump filings follow Texas in identifying the kernel of a valid legal argument–state legislatures determine the manner of selecting presidential electors–and on that basis asserting that any and all actions taken by executive branch officials, state election officials and state courts affecting election rules are therefore unconstitutional. While it is true that state courts cannot wholly rewrite state election law,……there is nothing in the Constitution that prevents state legislatures from delegating authority to state election officials or authorizing state courts to adjudicate election-related disputes as part of the overall legislative scheme, as the three-justice concurrence in Bush v. Gore affirmed. It is an indication of how extreme the Eastman/Trump arguments are that they go well beyond the bounds of the Bush concurrence……
    …….
    Saving the best for last, there is also an amicus filing on behalf of lawyers and others who have served in government as or on behalf of Republicans, including Carter Phillips, Stuart Gerson, Donald Ayer, John Bellinger III, and John Danforth. It also includes a few prominent conservative academics, including Michael Stokes Paulsen and our own Keith Whittington. It highlights the extreme nature of what Texas is requesting and is directly aimed at the Court’s conservative justices.

    Here’s a taste:

    There are myriad reasons to deny Plaintiff’s Motions. This amici brief focuses on one: the Constitution does not make this Court the multidistrict litigation panel for trials of presidential election disputes. Pursuant to the Electors Clause and 3 U.S.C. § 5 (Determination of controversy as to appointment of electors), state legislatures have made state courts the tribunals for presidential election disputes. This Court’s only jurisdiction is appellate.

    The Electors Clause and 3 U.S.C. § 5 contradict the Plaintiff’s unprecedented argument that a presidential election dispute is a controversy between two or more states. These provisions contradict Plaintiff’s argument by authorizing each state to delegate by statute the adjudication of all controversies or contests concerning federal presidential election results in that state to that state’s courts. Such statutory delegation to state courts is part of each state legislature’s chosen statutory “manner” for presidential elections as much as are the statutes on, for example, mail-in voting. A state’s chosen “manner” applies “exclusively,” McPherson v. Blacker, 146 U.S. 1, 27 (1892), “absent some other constitutional constraint.” Chiafalo v. Washington, 140 S. Ct. 2316, 2324 (2020) (emphasis added). There is no constitutional constraint against state courts being the trial courts for presidential election disputes.

    ……In the rare instance that a state supreme court’s ruling violates a federal constitutional provision or statute, this Court has appellate jurisdiction. See, e.g., Bush v. Gore, 531 U.S. 98, 100-01 (2000) (per curiam).

    Plaintiff’s Motions make a mockery of federalism and separation of powers. It would violate the most fundamental constitutional principles for this Court to serve as the trial court for presidential election disputes. . . .

    …….

    Rip Murdock (d2a2a8)

  93. 17. From The Volokh Conspiracy:

    The probability of former Vice President Biden winning the popular vote in the four Defendant States—Georgia, Michigan, Pennsylvania, and Wisconsin—independently given President Trump’s early lead in those States as of 3 a.m. on November 4, 2020, is less than one in a quadrillion,

    If the results came in randomly (and to get to 1 in a quadrillion they also had to assume that the 2-party split was the same in 2020 as in 2016, and to not be contradicted by the totals, refer only to the difference in the lead when say 40% of the vote was counted and 70% of the vote was counted.)

    Now a higher proportion of mail-in votes than in-person votes were cast for Biden, and mail-in votes and in-person votes were not counted in a random order.

    This is even worse than those statistics that aim to prove racial discrimination in policing or in school suspensions.

    Sammy Finkelman (63d78b)

  94. His point and mine is that there is a logical federal issue alleged, unlike the more frivolous issues presented in the other state and federal cases.

    Again respectfully: In my opinion this is a contender for the most frivolous case we have yet seen. I think Hinderaker is nearly alone in seeing any merit to this at all.

    Patterico (115b1f)

  95. This is even worse than those statistics that aim to prove racial discrimination in policing or in school suspensions.

    It is, in fact, a straight-up and utterly indefensible lie, prominently featured in a filing with the Supreme Court.

    Dave (1bb933)

  96. The success rate in court is now 1.8%.

    BREAKING: Arizona Federal Court DISMISSES Kraken conspiracy lawsuit.

    “Allegations that find favor in the public sphere of gossip and innuendo cannot be a substitute for earnest pleadings”

    Trump and his allies are now 1-54 in post-election litigation.

    Paul Montagu (8ad7b6)

  97. That Kraken is having its tentacles lopped off one by one.

    Rip Murdock (d2a2a8)

  98. you say Kraken
    the knife is san mai steel
    pass the shashimi

    nk (1d9030)

  99. 17 states and Trump join Texas’ lawsuit. It’s still a doomed Supreme Court stunt.
    …..
    …..[T]he claim at the heart of the suit has nothing to do with interstate relations — like a border dispute or litigation over water rights. Nor does it have anything to do with fraud. Rather, Texas is arguing that coronavirus-related changes to election rules in each state violate the federal Constitution, never mind that most states (including Texas) made such changes this cycle.

    But hypocrisy aside, the suit is also a perfect microcosm for so many of the other cases we’ve seen filed in the past month: It is lacking in actual evidence; it is deeply cynical; it evinces stunning disrespect for both the role of the courts in our constitutional system and of the states in our elections; and it is doomed to fail.
    ……
    At a more fundamental level, the notion that it is appropriate for one state to sue another because of dissatisfaction with the results of the election in that state is not just offensive; it is belied by at least one prior case in which the court refused exactly that relief. And allowing Texas to bring a suit like this would inevitably open the floodgates — to California suing Texas over its environmental regulations; to New York suing Florida over its Covid-19 response; and so on.
    …..
    …..Knowingly or not, willfully or not, the lawyers filing these actions are co-opting the courts — who have no obvious mechanism for pushing back besides dismissing the suits. They are appropriating the procedural formalities and substantive nuances of judicial review for purely political ends without regard to the results, all of which have been adverse. And in the process, they are showing stunning contempt for the very idea of an independent judiciary — with everyone from the president on down taking the position that, as soon as there are enough Trump-appointed judges on the right court, all of these cases will come out the “right” way, never mind what the law actually has to say about them.
    …….

    Rip Murdock (d2a2a8)

  100. hen the case should be decided in quick fashion. Texas is still doing their part to ensure their citizen’s aren’t disenfranchised. This is a good trial run for what will happen when states try to override the will of their people with the unconstitutional national voter compact.

    NJRob (eb56c3) — 12/9/2020 @ 4:14 pm

    This is reasonable I don’t agree but I can understand it. . Thank you for taking the time to explain.

    Time123 (9f42ee)

  101. Another neglected cure and preventative for Covid: (Facebook is censoring that too. IMO: Delegating to government bureaucracies the power to be the truth police is worse than Facebook being the truth police itself.)

    https://www.hsgac.senate.gov/imo/media/doc/Testimony-Kory-2020-12-08.pdf

    …Another barrier has been the censorship of all of our attempts at disseminating critical scientific information on facebook and other social media with our pages repeatedly being blocked…

    …Ivermectin is highly safe, widely available, and low cost. Its discovery was awarded the
    Nobel Prize in medicine, and is already included on the WHO’s “World’s List of Essential
    Medicines.” We now have data from over 20 well-designed clinical studies, ten of them
    randomized, controlled trials, with every study consistently reporting large magnitude and
    statistically significant benefits in decreasing transmission rates, shortening recovery times,
    decreasing hospitalizations, or large reductions in deaths. This clinical data is also supported by
    multiple basic science, in-vitro and animal studies. Our manuscript, completed one week ago, is
    already out of date due to the near daily emergence of new, positive ivermectin studies. The
    manuscript has been posted on the medical pre-print server OSF (Open Science Foundation) and
    can be downloaded here https://osf.io/wx3zn/ or on our organization’s website, http://www.flccc.net. A
    more updated meta-analysis and review authored by a group of Ph.D. researchers and scientists
    includes all ivermectin studies as of December 4th, 2020 and can be found on the c19study.com
    website here: https://ivmmeta.com/

    These data show that ivermectin is effectively a “miracle drug” against COVID-19….

    This is the prepared statement, In his oral testimony, excerpts of which were aired on the Mark Levin show by a substitute host, Pierre Kory said that just the previous night, they had heard of yest another study – there have been controlled studies, and may the people who demanded them and are still disregarding them rot in heck * – from Argentina, of 800 medical workers who were given ivermectin as a prophylactic, not one of them got sick, while of 400 of their colleagues who did not, 237, or 58%, got sick.

    ———————————
    * This is actually stronger than my feelings. There are grounds for overlooking it. But there are not words to describe what is going on, and what has been going on, with regard to medical progress, for the last nearly 60 years.

    Sammy Finkelman (63d78b)

  102. 97. Dave (1bb933) — 12/9/2020 @ 5:37 pm

    It is, in fact, a straight-up and utterly indefensible lie, prominently featured in a filing with the Supreme Court.

    What did somwbody say?

    “There are three kinds of lies: lies, damned lies, and statistics.”;

    https://en.wikipedia.org/wiki/Lies,_damned_lies,_and_statistics

    The thing isn;t so much a lie, as intentionally faulty reasoning. Now the probabiility of the lead changing as the votes are counted is afamiliar problem in statistics, and probably better known to people who have run for public office than the average person, but if course, Oaxton has to know what;s wrong with that reasoning: the votes were not counted randomly and as a matter of fact this was predicted before the election and Facebook and Twitter and the rest in fact went to great pains to try to get candidates not to declare victory based on early results, and that;s part of the reason that (even though this was aimed at Donald Trump) Joe Biden also delayed declaring victory till November 7.

    https://thehill.com/policy/technology/520092-facebook-to-slap-labels-on-posts-if-candidates-prematurely-declare-victory

    https://thefulcrum.us/big-picture/facebook-advertising

    Preemptive and premature declarations of presidential victory won’t be possible on Facebook anymore… It also said that, until a victor is declared by news outlets, it will have banners atop its News Feed alerting viewers that no winner has been decided…. Unless their contest ends up in an Electoral College rout, that could be days or weeks after the last vote is cast — because of the time needed to tabulate an unprecedented number of absentee ballots thanks to the coronavirus pandemic.

    It was universally understood that in-person votes and absentee ballots wouuld break differently. This Texas lawsuit acts like nobody remembers that.

    Sammy Finkelman (63d78b)

  103. No doubt, the lawsuit is nonsense. The quadrillion to one claim, when Paxton knows absentee ballots would lean heavy Biden and were counted last, is worse than a bad argument.

    But the idea that states changed how they were doing business in a way that advantaged democrat turnout is something I wish we could discuss without the general aura of the president trying to steal the election, or Texas’s AG trying to get himself a pardon. Obviously the clear and present issue is the folks calling for violence because they trust the president (amazingly) about the stolen election.

    It’s like how I can’t talk about immigration without folks reading into it all the Muslim Ban and ‘they are rapists’ stuff Trump’s said. One of the consequences of this conversation could be that we improve election integrity, but I would bet things actually get worse now. Republicans will not be able to talk about voter ID without evoking memories of Trump trying to steal the election.

    Dustin (4237e0)

  104. The suit Texas argues it’s unconstitutional for a non-legislative actor to change voting rules unilaterally. Didn’t Greg Abbott change voting rules unilaterally?

    lurker (d8c5bc)

  105. doh! *the Texas suit

    lurker (d8c5bc)

  106. Maybe so, but my recollection is some counties changed the rules to establish multiple drop-off ballot boxes and Abbott said only one per county. The courts ultimately upheld his restriction.

    DRJ (aede82)

  107. I am having a hard time understanding why this is more frivolous than all the other lawsuits. They are all weak but why is this one worse? At least this one makes a Constitutional argument. I thought upholding ObamaCare as a tax was weak so maybe my understanding of Con Law has diminished in the past decades.

    DRJ (aede82)

  108. But the idea that states changed how they were doing business in a way that advantaged democrat turnout is something I wish we could discuss

    Texas did its best, Mr. Dustin. Only one mail-in ballot collection box for a heavily Democrat county with 4,731,000 people. Nobody could have done better than that.

    It was Mr. Postmaster General Louis DeJoy who fell down on the job. He was supposed to make sure that those mail-in ballots didn’t get to voters in the first place, and if they did that they did not get back to the election boards in the second place.

    Now it’s up to Mrs. Justice Amy Coney Barrett to vamp four more Justices into voting to give the election to Mr. President Donald Trump and, just between you and me, I don’t give much for her chances, no denigration of the lady’s charms intended. Maybe if the Court were to be stranded on a desert island for a year or so ….

    nk (1d9030)

  109. The drop-off ballot box for mail-in ballots rules and cases are confusing but I think Abbott had statutory authority for some of the things he ordered. Maybe not everything, which supports lurker’s point, but voting by mail is uncommon and subject to strict rules in Texas. Absentee voting aka early voting is much more common and less restrictive.

    DRJ (aede82)

  110. The courts ultimately upheld his restriction.

    As I assume SCOTUS will uphold the challenged results in PA, WI, MI, and GA. My question was whether Texas’ argument, if it’s to be taken seriously, doesn’t undermine the legitimacy of its own election.

    lurker (d8c5bc)

  111. Well, I said in my last comment that if Abbott did things that were not part of his (legislatively created) statutory duties, then that would support your point. I don’t know enough about the election laws to say for sure.

    DRJ (aede82)

  112. I’m sure I know less than you do. It just struck me as an apparent anomaly.

    lurker (d8c5bc)

  113. Mail-in ballots are rare in Texas. If a drop-off box is used, I think they have to be turned in by the voter and verified as accepted by election officials. They may also be subject to election observers. Having more than one box made it hard to have fully staffed facilities, hence the one box rule where voters had to use an election facility. It sounds onerous and probably is, but Texas has very liberal absentee voting rules.

    DRJ (aede82)

  114. Mail-in ballots are typically mailed in (like military personnel or oilfield workers who are out of town). Dropping off ballots has not been something we typically see before Covid, but it has changed things.

    DRJ (aede82)

  115. Texas tried to stop the changes to its voting process that resulted primarily because of Covid, unlike what happened in other states. I get why people did not want to go to polling places to vote. I get that using drop-off boxes seems much safer but the process wasn’t ready for Covid. Texas voters did not have the same opportunities to vote as other States’ voters if (as alleged) we did not let Texas officials change the rules unilaterally but other States did. That is my understanding of part of this lawsuit. There are many reasons it will fail and probably should fail, but how is it frivolous?

    DRJ (aede82)

  116. Let me clarify: Mail-in ballots are rare in Texas when they are dropped off instead of mailed.

    DRJ (aede82)

  117. Nothing prevented Trump from embracing voting by mail like the Democrats did. Instead, the petty, petulant jerk did his best to discourage it and sabotage it, down to attempting to defund the Post Office.

    When it comes down to it, I see the mail-in ballot argument as saying that the Germans really won the Battle of the Bulge because they only had Mauser 98s and the Americans had M1 Garands.

    nk (1d9030)

  118. What did somwbody say?

    “There are three kinds of lies: lies, damned lies, and statistics.”;

    Not everyone understands statistics, but they are no more or less truthful or reliable than any other form of information. You can lie with words, with pictures, with numbers, or any combination thereof.

    The difference is that, as a branch of mathematics, there is well-defined set of rules for determining the correctness of any assertion, given the assumptions.

    I prefer a different take on the matter:

    “It’s easy to lie with statistics. But it’s easier to lie without them.”

    Dave (1bb933)

  119. The quadrillion to one claim, when Paxton knows absentee ballots would lean heavy Biden and were counted last, is worse than a bad argument.

    It’s like saying you can walk from California to Hawaii, ignoring the ocean in the way.

    It’s a lie, and an insult to the intelligence of the justices.

    Dave (1bb933)

  120. Trump asked Ted Cruz to present the Texas case to the Supreme Court. Let me speculate on how that might go.

    Cruz’s main goal is twofold. Down Trump and get elected President himself.

    Of course he would be way over-the-top in support of Trump in his presentation to the Court, knowing that Trump fans are watching intently. Sycophantic, even to the point that he is a turnoff to members of the Court. He might also focus on points that the base cares about at the expense of the case.

    Ted may be overrated but he is smart enough to pull that off. A win by losing strategy.

    noel (9fead1)

  121. Ted Cruz also knows he almost certainly won;t be able to argue this case before the court. His offer was maybe made with that in mind. He may have a backup plan as to what argument he would make. It wouldn;t be way over the top – just extreme in the remedy. He’d rest his case on the idea that states didn’t conduct the election as their legislature had specified. He’d expect to lose, anyway

    Sammy Finkelman (63d78b)

  122. As a Greek Orthodox layman, I volunteer to be advocatus Dei at the Vatican for the canonization of JFK as a Roman Catholic Saint.

    The only difference between Ted Cruz and Stormy Daniels is the $130,000.

    nk (1d9030)

  123. Good phrase by Erickson regarding Paxton and his Seventeen Legal Dwarves: “His lawsuit is just more performative leg humping by someone desperate to curry favor with President Trump.”

    Let me explain just how absurd this case is:

    ● Texas can cite no cases at all in its claim that it has standing to sue the states for the administration of their own internal elections.

    ● Texas alleges the other states changed election laws due to the pandemic without the legislature’s blessing. You know one state not being sued that did that? Texas.

    ● The states allege it is illegal to count ballots received after election day. Several of the states making that claim also do that.

    ● Their expert argues a sign of voter fraud is that it is not likely Trump 2016 voters would vote for Biden in 2020. The expert also uses dubious statistical modeling comparing Clinton to Biden.

    ● The Missouri amicus all but says they don’t necessarily agree with Texas’s legal statements, but the case is so important the Supreme Court should hear it.

    ● Texas could not even get its Solicitor General — the man who argues on behalf of the state before the Supreme Court — to sign onto the lawsuit. That’s how frivolous it is.
    […]
    If Texas were to win this, it would dissolve the horizontal federalism of our union and only expand the powers of the federal government. It would also lead to a Civil War as a handful of states overturn the rules and laws of other states and dictate those states’ internal affairs. Wait for Gavin Newsom and Andrew Cuomo to give this precedent a whirl. Wait for progressive states to start suing conservative states over religious liberty, transgender rights, police brutality, tax policies that “steal” residents of progressive states, etc.

    Erickson endorsed and voted for Trump.

    Paul Montagu (77c694)

  124. I dunno, Paul. If I were the Attorney General of Illinois, I would be tempted to intervene right now with a cross-claim against Texas, using Paxton’s own legal theory, to get 20 of Texas’s Electoral votes thrown out. Not all, just 20, the same number as Illinois has. Texas effectively disenfranchised the citizens of the State of Illinois by not following Illinois’s rules for voting, and the only remedy is to make 20 of Texas’s Electoral votes not count.

    nk (1d9030)

  125. nk, it’s as if this idiot lawsuit is not going to attach to those AGs for the rest of their careers.

    Paul Montagu (77c694)

  126. Paul Montagu (77c694) — 12/10/2020 @ 6:47 am

    Texas can cite no cases at all in its claim that it has standing to sue the states for the administration of their own internal elections.

    A candidate might have standing, but they want to get the case before the Supreme Court, because Trump wants that, hoping maybe 6 might beat 3 – the 6 Supreme Court Justices put on the court by a Republican president versus the 3 now on the court put there by a Democratic president. And the Supreme Court has original jurisdiction over suits between different states, so that’s the way they hope to get the case before the Supreme Court.

    But a state doesn’t seem to be the proper plaintiff, if indeed we say that the validity of the appointment of Electors is not up to Congress to decide, at least at first.

    This would give the Supreme Court the power to void an election.

    Ad this is also besides the fact that, even if the Supreme Court has original jurisdiction, and does not dismiss it for failing to be a dispute between states, it can decide a case summarily, so no showcase for lawyers or anything.

    ● Texas alleges the other states changed election laws due to the pandemic without the legislature’s blessing. You know one state not being sued that did that? Texas.

    Not a problem. They’re not asking for relief from any election that Trump won. Lawyers do this kind of picking. Texas could say: Let the other states countersue. If not that matter is not before the court.

    ● The states allege it is illegal to count ballots received after election day. Several of the states making that claim also do that.

    It;s illegal to have them cast after Election Day (unless Congress would authorize that) but no state does that. The Electors in fact are/were chosen on Tuesday, November 3. Ballots sent before do not become effective before November 3. That would mean that if a voter mailed in a ballot before Election Day but died before Election Day, his vote should not be counted and some states take steps to ensure that happens.

    ● Their expert argues a sign of voter fraud is that it is not likely Trump 2016 voters would vote for Biden in 2020. The expert also uses dubious statistical modeling comparing Clinton to Biden.

    Now does anybody think that all voters vote a straight party ticket, not only on one election, but as regards to different elections in different years? This is a ridiculous premise. And if so, then perhaps people should be allowed to register by party and have that count as a vote for all candidates nominated by that party for all elections in the future until and unless the registration is changed? A state could do that, especially for presidential elections. But no state does.

    Sammy Finkelman (63d78b)

  127. The problem with frivolous lawsuits is that they are more-often-than-not lost.

    https://reason.com/2020/12/09/trumps-judicial-humiliation-is-nearly-complete/

    Gawain's Ghost (b25cd1)

  128. The Dispatch did their own review of Trump’s court cases and, excluding the minor suits involving standing and such, his win-loss record goes from 1-55 (for a batting average of 0.018) to 0-11. There are seven cases pending, two of which were previously denied.

    Paul Montagu (77c694)

  129. @127

    How many of them do you figure plan to parlay this attack on America into a Trump-blessed House or Senate run?

    Another chilling observation: with the election over, polls have fallen out of the headlines, but during the past six weeks when he has openly orchestrated an illegal coup, Trump’s approval ratings have barely moved by a percent.

    On November 2, it was 44.6%/52.6% Approve/Disappove.

    Today, it is 43.1/52.8 – practically unchanged.

    Trump’s approval rating right now is several points *better* than it was in July. In 2020 America, there is apparently no political price to be paid for attempting to seize power from the voters.

    Dave (1bb933)

  130. Laughing hysterically that a individual from the land of fruits and nuts would question the sanity of the state of Texas, if your smoking sundae driver, i get it.

    mg (d13c82)

  131. I am having a hard time understanding why this is more frivolous than all the other lawsuits.

    DRJ,

    First, not *all* of the other lawsuits. The Kraken ones have the distinction of being the worst. But most of them. My “contender” comment was a bit of hyperbole.

    Try reading this for starters. It doesn’t list all the reasons I think the suit is meritless but it’s a start.

    Again, the theory you mentioned, that state legislatures have plenary authority over appointment of each state’s electors, in the abstract, is a valid theory. In practice, in this lawsuit, as applied, it is meritless.

    Patterico (115b1f)

  132. @132 Research shows that changing geographic locations has no effect on IQ scores.

    Nic (896fdf)

  133. I will read that, and thank you.

    Like nk, it troubles me to see one state question other states’ election decisions. I think that will trouble the Court, too. But I am having a hard time in theory with why there is an equal protection problem when different counties in a state change the voting standards/rules in a national election, as the Court held in Bush v Gore, but it is ok for different states to do. Recall also that Thomas, Scalia, and Rehnquist would have stopped the Florida recount as a violation of Article II, Section One of the Constitution. This lawsuit raises Equal Protection and Article II claims so any briefing on this lawsuit will probably rely heavily on Bush v Gore.

    DRJ (aede82)

  134. So… is it possible for SCOTUS to take this Texas case, and rule that there ARE equal protection problems when states change voting standard/rules in a national election, ala Bush v Gore. But, DENIES any remedy for the 2020 election?

    That way, future elections would be held to a new SCOTUS precedent???

    whembly (4c6c6d)

  135. Laughing hysterically that a individual from the land of fruits and nuts would question the sanity of the state of Texas, if your smoking sundae driver, i get it.

    As I understand it, Patterico is from Texas originally.

    Dave (1bb933)

  136. Thank you for the link. I think French is right that the Court will want to dispense with this lawsuit based on standing or waiver/laches. I would add the possibility of “no justiciable controversy.” But tarring all claims based on arguable statistical affidavits would be disappointing. Petitioners have to raise all claims, even weak ones, especially in time sensitive cases like this. It is unusual that Biden would perform so spectacularly and that surely does trouble Trump supporters. I attribute it to how bad Trump is and wouldn’t mind seeing evidence in court. Plus, at least they did not confuse Michigan and Minnesota.

    PS to lurker — In the comments at P’s link, Beldar answers your earlier question:

    Bill Dyer (aka Beldar)18 hr ago

    There is one category of changes that were made in Texas by gubernatorial proclamation, using authority expressly delegated to the Texas governor by the Texas legislature in the Texas Government Code’s provisions for the operation of government during a public health emergency like the current pandemic. For instance, Gov. Abbott’s proclamations used his discretionary authority from the Legislature to open early in-person voting sooner, giving every Texas voter six additional days within which to cast an in-person vote. A mandamus petition filed in the Texas Supreme Court from Republicans to Abbott’s right alleged that this was beyond Abbott’s authority, but because it was delayed until the brink of the election, the Texas Supreme Court immediately threw that case out on ground of laches.

    Democrats, however, thought Abbott didn’t go far enough, and several Democratic county clerks in urban Texas counties tried to implement their own changes. The Harris County Clerk proposed to send a mail-in ballot to every Harris County voter, for example, even though the Texas Legislature had expressly refused to widen Texas voting by mail beyond traditional absentee voters absent from the county (not only on election day, but every early voting day), the disabled, the incarcerated, and those age 65 or over. The Texas Supreme Court granted a petition for mandamus restraining the Harris County Clerk from doing that. He then set about trying to side-step the state’s limitation on curbside voting to the disabled by setting up curbside tents and designating each of those as a separate “polling place.” On the literal eve of the election, a federal district judge in Austin strongly suggested in his opinion that such was illegal, the Election Code requiring that polling places be buildings with a permanent address, so the Harris County Clerk closed down all of those except for one, at the Toyota Center sports arena’s parking garage downtown. For those Texas voters actually eligible for no-excuse voting by mail (mostly Texans age 65 and over or disabled), Gov. Abbott’s proclamations also used his Government Code authority to extend the dates upon which mail-in ballots could be physically dropped off by voters, rather than mailed back or sent by courier; normally, per the Election Code, that could only be done on election day itself, but Gov. Abbott gave qualified voters the entirety of the early voting period to do that. What he could not do, however, was use his Government Code powers delegated by the Legislature to change substantive provisions, unrelated to timing, of the Election Code. Thus, Gov. Abbott’s refusal to permit county clerks to accept these drop-offs at multiple locations was upheld by the Fifth Circuit despite the Dems’ ridiculous screams of disenfranchisement. Never mentioned by the Dems was the fact that in Harris County, the rogue clerk had already collected “tens of thousands” of improperly dropped-off mail-in ballots, with neither poll watchers nor election judges available to observe those drop-offs; all of those votes could have been challenged as being invalid, but as it turned out, Biden’s down-ticket coattails produced margins of error making those votes irrelevant and unnecessary to the results.

    So: In summary, I’d say Gov. Abbott made only those changes to the voting rules that the Legislature had already given him delegated authority to make during pandemics. And in general, the efforts of Dems to make additional changes generally failed due to court challenges.

    DRJ (aede82)

  137. Anybody want to read the Equal Protection Clause?

    All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    When did Texas become a person within Wisconsin’s jurisdiction? In Bush v. Gore, the Florida election authorities were treating a Floridian in County A differently from a Floridian in County B.

    nk (1d9030)

  138. Standing is a big issue, nk which IMO is why Article II, Section One was raised. Also, the Privileges/Immunity and Due Process Clauses might apply. They have been used to extend Equal Protection principles to noncitizens and residents of other states. In this case, each state is a proxy for its residents.

    DRJ (aede82)

  139. What I believe without qualification is that the Court won’t let this be a vehicle to question the outcome of the election. But how they deal with it and whether/what they say matters.

    DRJ (aede82)

  140. @141

    What I believe without qualification is that the Court won’t let this be a vehicle to question the outcome of the election. But how they deny it and whether/what they say matters.

    DRJ (aede82) — 12/10/2020 @ 10:11 am

    I hope you’re right DRJ.

    Because I can see the National Vote Compact being a thing in our future and there will be oodles of lawsuits to render that unconstitutional (which I believe it is unconstitutional). However, systems like Maine and Nebraska assigning electors by Congressional District still seems kosher.

    whembly (4c6c6d)

  141. whembly,

    I suspect the Court will deny the motion for an injunction per curiam and let this sit on the docket until the electors are certified, following which they will dismiss this case as moot. Anything more by the Court or any Justice would be interesting.

    DRJ (aede82)

  142. So Pennsylvania denied equal protection to the citizens of Texas because Pennsylvania’s judicial and executive branches made new election rules for Pennsylvanians instead of the Pennsylvanian legislature like Article II says, while the law-abiding Texans were stuck with the election rules the Texas legislature had made like Article II says and did not let the judicial and executive branches make new ones?

    nk (1d9030)

  143. I lean with the prediction made by Rip Murdock above that the Court will simply deny the motion to file the case at all.

    nk (1d9030)

  144. In a national election, yes nk 144.

    DRJ (aede82)

  145. If the process changed but not according to law. If a state governor unilaterally changed the electoral process for his state in contravention of state law, could only residents of that state complain? Maybe. I don’t know.

    DRJ (aede82)

  146. So Pennsylvania denied equal protection to the citizens of Texas because Pennsylvania’s judicial and executive branches made new election rules for Pennsylvanians instead of the Pennsylvanian legislature like Article II says, while the law-abiding Texans were stuck with the election rules the Texas legislature had made like Article II says and did not let the judicial and executive branches make new ones?

    But the plain wording of the 14th Amendment does not require Pennsylvania to give equal protection to anyone in Texas:

    All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    Note: “within its jurisdiction”

    The Texas suit is akin to arguing that Pennsylvania must provide unemployment and other benefits, in-state tuition at public universities, etc, to residents of Texas.

    Dave (1bb933)

  147. I think the equal protection claim is a red herring, and my view of TX’s argument is more along these lines:

    * the *actual voters* in a presidential election are the *states*, not the citizens of the states. the fact that all of the states have chosen to defer the decision making to their citizens doesn’t change this structural reality

    * the constitution is an agreement between the states. part of the agreement is that the state legislature determines how electoral votes are allocated

    * each state is injured if and when other states violate the agreement

    * the four states in question violated the agreement by having the executive or the courts interfere in the state legislture’s determination of the allocation of electoral votes

    * this injured the other states

    aphrael (4c4719)

  148. each state is injured if and when other states violate the agreement

    IANAL, but doesn’t a justiciable claim require some showing of actual (not theoretical) harm to the plaintiff?

    Where is the actual harm to Texas here?

    Dave (1bb933)

  149. the actual harm to Texas is that if the constitutional rules were followed, Trump would have won. So the putative outcome of the election is a result of breaking the agreement between states.

    aphrael (4c4719)

  150. That’s a reasoned justification, aphrael, but if Wisconsin violated an “agreement”, but shouldn’t that violation be addressed in a Wisconsin court first? As I recall, there are still three cases pending.
    Isn’t the reason for taking a state-versus-state issue to a higher court because other recourse is not available?

    Paul Montagu (77c694)

  151. “the actual harm to Texas is that if the constitutional rules were followed, Trump would have won.”

    That’s a harm to Trump. How is it a harm to Texas?

    Davethulhu (431e91)

  152. State election statutes are signed into law by the governor.

    Does that executive interference in the process make them constitutionally invalid?

    It seems to me that the absolutist position is untenable. The legislature determines how the state’s electoral votes should be chosen by passing a law. That law, like all state laws, is executed by the state’s executive, and interpreted by the state’s judiciary. In addition, the law and its execution are subject to the state constitution, which is distinct from the state legislature.

    In the case of PA, the state constitution includes wording to the effect that the state should encourage and protect voters’ ability to participate fully in elections, and the PA Supreme Court ruled unanimously that these constitutional imperatives required the governor to mitigate the pandemic’s effect on peoples’ ability to vote safely.

    Dave (1bb933)

  153. Remember the Texas “affluenza” case? Rich little jerkoff killed four people while driving drunk; was let loose without even a slap on the wrist? Does anybody doubt that the judge was corrupt and that the sentence involved hanky-panky? But the defense brought in a phony “affluenza” expert to give the judge something to hang his hat on.

    Same thing, here, except that I doubt Paxton will find five corrupt Justices. If he does, they’ll have something to hang their hat on.

    Also, seeing as there’s a “The Chicago Way”, can we call this “The Texas Way”? (Ducks)

    nk (1d9030)

  154. Good point, aphrael. That is basically the Article II, Section One argument that only got three votes in Bush v Gore, which is why I think they also raise the equal protection argument.

    As for the harm to Texas and other states that voted for Trump, their votes were frustrated by the Biden wins in states that did not follow their own rules. FWIW I don’t think there would have been a different outcome. I think Biden won and would have still won.

    DRJ (aede82)

  155. The executive administers the laws but it is according to existing laws, Dave, not whatever he decides he wants to do.

    DRJ (aede82)

  156. the Petitioners may be boot-strapping, i.e., Hoping to use Article II for standing and equal protection to gain support from more of the Court. But the short election/electoral college timeframe is what makes this case and all cases unrealistic.

    It reminds me of the early abortion cases where the cases were dismissed as premature/not ripe without an actual pregnancy, only to be dismissed as moot before they could be heard because the pregnancy had ended in childbirth. Courts did not want to hear those cases any more than they want to address political questions now. We may be more likely to see action in state legislatures than courts.

    DRJ (aede82)

  157. Sammy, thank you so much for that linked article at 85 about overseas Chinese falling prey to Trumpist propaganda. Like I’ve said before, you have a knack for finding links to things I write about.

    norcal (7a31c4)

  158. The Canal Zone was wierd because it was an unorganized territory and was therefore neither considered part of the US nor fully outside of the US.

    The law prior to 1937 did not automatically grant citizenship to children born to American citizens in such circumstances. There were hoops you had to jump through (just like, now, if an American citizen man knocks up a foreign woman, there are hoops to go through to get the child recognized).

    Congress changed the law in 1937. McCain was born in 1936.

    aphrael (4c4719)

  159. Prior to May 24, 1934, children born outside the limits and jurisdiction of the United States, whose fathers were United States citizens, acquired U.S. citizenship at birth unless the father had never “resided” in the United States prior to the child’s birth. In the absence of a specific definition of “resided”, the Immigration and Naturalization Service took the position that even a temporary sojourn by the U.S. citizen parent was sufficient to comply with this requirement.
    http://www.americanlaw.com/citabrd.html

    The Canal Zone thing was just smoke generated by Claire McCaskill and ilk. McCain could have been born on the Moon and if his mother could produce a marriage certificate that at the time she was married to McCain Senior he would have been a U.S. citizen.

    nk (1d9030)

  160. Sorry. Helps if you include the entire thing:

    On or after May 24, 1934, a child born outside the limits and jurisdiction of the United States, whose father or mother (or both) was a citizen of the United States at the time of the child’s birth, would be considered a United States citizen provided that the U.S. citizen parent had resided in the United States prior to the birth of the child. The previous interpretation of “resided” continued to apply under the 1934 Statute.

    nk (1d9030)

  161. nk 155,

    If it helps your opinion of me, I think the Affluenza judge and Paxton acted immorally, even if there is a legal basis for what they did. Acting zealously is the standard for lawyers but IMO it shouldn’t be, because it gives them cover for undermining the Rule of Law and our system of government.

    DRJ (aede82)

  162. 153. Davethulhu (431e91) — 12/10/2020 @ 11:31 am

    How is it a harm to Texas?

    They’re outvoted. That’s what they seem to be trying to say.

    Sammy Finkelman (26a080)

  163. I have always had the highest possible opinion of you, DRJ, and I can’t imagine anything that would change that.

    Also, I think that Paxton’s case is colorable enough to avoid sanctions. (More colorable than arguments I’ve made to judges in mandatory minimum sentencing cases in my misspent youth.) But not more than colorable. Just at first glance, it’s too literal a construction of Article II, and way too broad an application of Equal Protection, and that’s assuming that it’s even justiciable.

    nk (1d9030)


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