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The Supreme Court on Friday denied a Hail Mary effort by the attorney general of Texas who had asked the court to intervene and overturn the election in four states that went for Joe Biden, dealing a crippling legal pro to Donald Trump’e legal strategy.
The court voted 7-2 to dismiss the case. Justice Clarence Thomas and Samuel Alito said they would have heard the case – but that they would have refused to overturn the election result effectively making the result 9-0.
The stunning end to Trump’s legal bid to overturn the election came just after 6.30pm in a one-page ruling from the court.
‘Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections,’ the ruling said – refusing to even take up a case that legal scholars had already ripped as a legal farce.
Trump had called the case ‘the big one,’ and tweeted a series of messages designed to push the court to rule in his favor.
Now, with the high court dismissing the high-profile effort – the mother of all the ‘Kraken’ lawsuits – he is without an avenue to overturn the election he calls ‘rigged’ despite dozens of lower courts ruling against allied efforts.
The president sought to intervene in the case – and 126 Republican House members followed suit, while 17 states signed a friend of the court brief supporting the Texas suit.
That didn’t stop the four states being sued, Pennsylvania, Michigan, Wisconsin, and Georgia, from blasting the suit as ‘legally indefensible and is an affront to principles of constitutional democracy.’
The Republican attorney general of Texas sued four battleground states, Michigan, Wisconsin, Pennsylvania, and Georgia, seeking to overturn the election results and have state legislatures appoint electors
But the majority found that Texas lacked ‘standing’ to even bring the case. It also had not demonstrated a ‘judiciably cognizable interest in the manner in which another state conducts elections.’ In other word, its legal argument failed to justify why it was justified in having a court consider it’s objections to how another state chose to run its elections.
The dissent by Alito and Thomas was a particular blow. The two conservatives gave no quarter to the substance of Texas’ argument. Their separate dissent spoke only to their position that they would have heard the case, or granted certiorari, due to its nature as an inter-state dispute. They said it ‘falls within our original jurisdiction,’ a reference to the Constitutions grant of authority to the Supreme Court to hear such cases.
Their statement that they ‘would not grant other relief’ constitutes a rebuke to the case itself, and it was not required that they telegraph what they would decide. Stating that they did not have ‘discretion’ not to hear the complaint is in keeping with the pairs’ long-held view on other cases.
But the Court’s majority did not believe such a dispute would automatically get a hearing. In the case at hand, which was bound to Trump’s own claim to have suffered ‘massive’ electoral fraud – not a single justice, liberal or conservative, spoke to the substance of his claim.
That would include the Court’s newest justice, Amy Coney Barrett, despite Trump having openly discussed the imperative to push through her confirmation in order to hear election disputes.
Three of the justices in the majority: Justices Neil Gorsuch, Brett Kavanaugh, and Barrett, were in the majority voting not to even hear the case.
‘Every American who cares about the rule of law should take comfort that the Supreme Court — including all three of President Trump’s picks — closed the book on the nonsense,’ said Republican Sen. Ben Sasse of Nebraska, one of the few Republicans to publicly condemn the effort.
It also wiped away any hope Trump had of getting any Bush v. Gore-style intervention from the Court – in an analogy that showed up in pro-Trump legal briefs that overlooked how that Supreme Intervention involved an exceedingly close contest in a single state and a judicial question of whether to stop a count taking place.
Hailing the decision was Pennsylvania’s Attorney General Josh Shapiro, whose legal filing eviscerated the claims made by the Texas Republican attorney general.
‘Our nation’s highest court saw through this seditious abuse of our electoral process. This swift denial should make anyone contemplating further attacks on our election think twice,’ he said.
Said Michigan’s attorney general Dana Nessel: ‘Today’s Supreme Court decision is an important reminder that we are a nation of laws, and though some may bend to the desire of a single individual, the courts will not.’
Trump’s obsession with the case was such that he even reportedly asked Sen. Ted Cruz (R-Texas) if he would argue the case if the Court agreed to hear it.
With the Supreme Court’s refusal to take the case, the next key moment comes Monday, when the electoral college meets in state capitals around the country, effectively ensuring Biden’s inauguration.
Biden leads in the electoral college by 306 to 232 electoral votes, unless a ‘faithless’ elector tries to vote contrary to the popular vote in a state.
A ‘safe harbor’ period for challenges to the count in each state has already passed.
But that doesn’t mean political backing for Trump’s continued efforts to rage against the election will end. Throughout weeks’ worth of challenges since Election Day, the vast majority of elected Republicans have refused to declare Joe Biden the winner while Trump pursued his options.
Wall of support from elected Republicans
The court’s move came after wave of Republicans sought to align with Trump even in what looked to be his last days in office.
House minority leader Rep. Kevin McCarthy of California joined the effort Friday.
He is now one of 126 Republican lawmakers who have signed onto a legal brief seeking to join the seat – out of a caucus of 196 members, meaning well over half of elected Republicans have lent their names to the effort.
In addition, 17 states have sought to file a ‘friend of the court’ brief in support of the Texas suit to have the court disallow the result and have the Republican-run legislatures in four states choose Trump Donald Trump electors rather than those that voters chose for Joe Biden.
House Minority Leader Kevin McCarthy (R-CA) has signed onto a brief seeking to support a lawsuit by the Texas attorney general seeking to overturn the election
The names provide a real-time guide within the elected GOP for who supports ‘Kraken’ style lawsuits to overturn the election despite the popular vote, versus a smaller bloc clinging to traditional norms.
In the Senate, Republican whip John Thune of South Dakota was dismissive of the suit. ‘I just don’t know why a state like Texas which never wants anybody telling them what to do, now wants to tell a bunch of other states how to run their elections. I doubt the Supreme Court will take it up,’ he told The Hill newspaper.
Former Florida Gov. Jeb Bush, a Trump rival in 2016, called the Texas lawsuit ‘crazy.’
‘This is crazy. it will be killed on arrival. Why are smart people advancing this notion? Let it go. The election is over, he tweeted Thursday night.
TEXAS DOUBLES DOWN
The state AG claimed in a new filing it is ‘impossible’ to know who won the election – and faults four states for failing to ‘show’ that Biden won.
AG Ken Paxton, who has been photographed with the Trump in the presidential limousine and who is under indictment but maintains his innocence, responded to the charge that his lawsuit seeks to ‘overthrow the votes of the American people.’
Although the suit sought to overturn the vote in four states that went for Joe Biden, Paxton rejected the claim that it would do such a thing.
‘Texas does not ask this Court to reelect President Trump, and Texas does not seek to disenfranchise the majority of Defendant States’ voters,’ according to the response. ‘To both points, Texas asks this Court to recognize the obvious fact that Defendant States’ maladministration of the 2020 election makes it impossible to know which candidate garnered the majority of lawful votes,’ according to the filing.
‘Texas IS likely to prevail’ according to the legal brief filed with the Supreme Court by the office of Texas attorney general Ken Paxton, seen here with Trump in June.
People wait in line to vote in the 2020 general election at Life Stream Church on November 3, 2020 in Allendale, Michigan
Supporters of President Donald Trump gather outside of the U.S. Supreme Court on December 11, 2020 in Washington, DC
The suit seeks to overturn the vote in Georgia, Michigan, Wisconsin, and Pennsylvania – which would be sufficient to award Trump the White House. The suit claims the states violated the constitution through major expansions of mail-in voting amid the pandemic.
‘Texas IS likely to prevail’ according to the brief.
After Georgia’s Republican lieutenant governor on Thursday night responded to the suit saying there had ‘not seen a single ounce of systemic or organized fraud,’ Paxton’s filing maintains the burden falls on the states to prove that their elections were legitimate.
‘The balance of equities tips to the Plaintiff State,’ according to the filing. ‘Defendant States first assume that Mr. Biden won their States legitimately, then use that assumption to criticize Texas’s arguments for disenfranchising voters. If the flawed 2020 results stand, that result would disenfranchise voters,’ according to the filing.
The filing says the four states ‘assume’ that Biden won legitimate. Each operates a legal apparatus to assess the vote, and two of them conducted recounts
‘At best for Defendant States, the balance of equities could be neutral. But because Defendant States cannot—or at least do not— seriously defend the merits or show that Mr. Biden actually prevailed, the equities tip in favor of Texas and of the lawful process for resolving contested elections ‘do precious little to defend the merits of their actions,’ according to the filing.
All four states have already certified their results for Joe Biden. Georgia already conducted multiple statewide recounts, and Wisconsin conducted a recount in two heavily Democratic counties at the request and cost of the Trump campaign.
TRUMP TURNED UP HEAT ON TWITTER
Trump repeatedly used his Twitter megaphone seeking to drive up political pressure and even make arguments that might influence the court.
‘If the Supreme Court shows great Wisdom and Courage, the American People will win perhaps the most important case in history, and our Electoral Process will be respected again!’ he wrote late Friday afternoon.
He brought up campaign speculation that Biden would seek to pack that court – although Biden was being pushed by some on the party’s left flank to do so assuming he won a substantial Senate majority, which didn’t happen.
‘If the two Senators from Georgia should lose, which would be a horrible thing for our Country, I am the only thing that stands between ‘Packing the Court’ (last number heard, 25), and preserving it. I will not, under any circumstances, Pack the Court!’ he said, in tweet that appeared designed to appeal to the individual justices, who hold tremendous power as lifetime appointees to a group of nine under the current system.
Pennsylvania and other states charge ‘seditious’ abuse at suit calling to toss out millions of their votes
The legal filing came after the four states responded to the initial suit, which President Trump wants to join.
Their filing shredded the effort to turn the vote as a ‘surreal alternate reality’ and ‘seditious’ abuse of the courts.
They attacked the lawsuit as an attempt to ‘overthrow’ the results of the election.
It was a last-ditch argument Trump immediately latched onto in his effort to have courts and state legislatures ‘overturn’ the election.
But the Texas suits’ arguments were ‘moot, meritless, and dangerous,’ argued the four states who would have their votes discounted.
‘Let us be clear. Texas invites this Court to overthrow the votes of the American people and choose the next President of the United States. That Faustian invitation must be firmly rejected,’ they asked the court.
The Pennsylvania AG’s office described the Texas suit as a crass political maneuver to extend Trump’s term.
‘Texas’s effort to get this Court to pick the next President has no basis in law or fact. The Court should not abide this seditious abuse of the judicial process, and should send a clear and unmistakable signal that such abuse must never be replicated,’ they urged.
The lawyers for the four states, headed by Pennsylvania Josh Shapiro’s office, took aim at a major federalism flaw in the case – allowing one state to seek to ‘dictate’ the election laws of another, even as the Constitution grants states the authority to run their own elections.
‘Texas has not suffered harm simply because it dislikes the result of the election, and nothing in the text, history, or structure of the Constitution supports Texas’s view that it can dictate the manner in which four other states run their elections. Nor is that view grounded in any precedent from this Court. Texas does not seek to have the Court interpret the Constitution, so much as disregard it.’
The Pennsylvania AG even took time to dispatch a ‘statistical analysis’ provided by the Texas suit that the chance of Biden winning despite Trump’s ‘lead’ at 3 am on election night was ‘less than one in a quadrillion.’
‘Texas also relies on a statistical analysis prepared by Charles J. Cicchetti, Ph.D., in support of the assertion that the results in the four defendant states were so improbable as to be evidence of misconduct. Bill of Complaint ¶¶ 9–12. Texas’s allegations and Dr. Cicchetti’s analysis are nonsense,’ according to the filing.
”It bases this astounding assertion on Dr. Cicchetti’s assessment, for each of the states, of the extremely low probability that the votes counted before 3 a.m. and those counted afterwards were ‘randomly drawn from the same population.’
However the way the votes came in were not random.
‘But the votes counted later were indisputably not ‘randomly drawn’ from the same population of votes, as those counted earlier were predominantly in-person votes while those counted later were predominantly mail-in votes,’ they noted.
The claims by Texas ‘are neither serious nor dignified,’ according to the filing. The dispute ‘involves Pennsylvania’s interpretation of its own laws, and Texas’s disagreement with that interpretation.’
Texas ‘repeats the same false allegations of election fraud that have already been repeatedly rejected by other courts,’ according to the filing, following dozens of defeats by Trump and his allies in election lawsuits since Nov. 3.
‘And its request for relief—to disenfranchise tens of millions of voters who reasonably relied upon the law—is uniquely unserious.’
Georgia’s lieutenant governor, Geoff Duncan, blasted the suit. ‘This is not American, this is not democracy. This is not our finest moment. My hope is we quickly move past this,’ he told the PBS News Hour.
‘We have not seen a single ounce of systemic or organized fraud,’ he said. ‘I’m proud of that even though the person I supported didn’t win.
Paxton has his own legal situation
Adding to the intrigue and farce of the situation, it was revealed just hours after the latest filing that Texas Attorney Gen. Ken Paxton, who filed the suit, had his office served with a federal subpoena on Wednesday.
FBI agents delivered ‘at least one’ subpoena to the AG’s office, the Austin-American Statesman reported Thursday, in connection to an ongoing investigation.
The subpoena follows multiple aides in his office quitting and alleging abuse of his office and bribery. Paxton’s prominent role in the case, combined with his own legal troubles, has led to speculation he is seeking a presidential pardon – following Trump intends to dole out a slew of pardons to allies in his final weeks in office.
Paxton was among the Republican attorneys general who met with Trump at the White House Thursday amid his suit seeking to overturn the election.
Nebraska GOP Sen. Ben Sasse was among a few elected Republicans dissing the case, even as 17 state attorneys general sought to sign on.
A total of 22 states plus the District of Columbia signed an amicus brief against it.
‘I’m no lawyer, but I suspect the Supreme Court swats this away.
From the brief, it looks like a fella begging for a pardon filed a PR stunt rather than a lawsuit – as all of its assertions have already been rejected by federal courts and Texas’ own solicitor general isn’t signing on,’ he wrote.
His ‘begging for a pardon’ comment likely referenced Texas AG Ken Paxton, who was indicted in 2015 for alleged securities fraud and been accused by former aides of abuse of office and bribery. He is currently under FBI investigation.
Pennsylvania Attorney General Josh Shapiro filed a blistering response to the Texas AG’s lawsuit seeking to overturn the election
The filing calls out a ‘cacophony of bogus claims’ and calls it ‘legally indefensible’
Trump courts state AGs
Trump kept up his bid to try to get the Supreme Court to overturn the election Thursday, tweeting about a ‘coup’ and a ‘corrupt election’ hours after another federal judge dismissed an election challenge by a Trump ally.
Trump met Thursday with state attorneys general have have followed his lead in seeking to intervene in a Texas lawsuit asking the high court to disregard millions of ballots in four states that Joe Biden Won.
And he continued to tout a conspiracy theory involving voting machines that Trump’s lawyers say were designed to rig the election, despite courts and state officials not buying it.
‘Great. Most corrupt Election in history, by far. We won!!!’ Trump tweeted, as he blasted out post about Republican House members seeking a special counsel to probe the election, which Joe Biden won by more than 7 million votes.
‘Voter Fraud!’ he wrote in another tweet, where he retweeted a Newsmax host who posted video purporting to show ‘mysterious ballots’ being counted in Georgia.
President Donald Trump tweeted a quote from a fan who alleged an election ‘coup,’ hours after he called to ‘OVERTURN’ the election results
Trump retweeted video purporting to show voter fraud that the Georgia Secretary of State said showed nothing improper
What Comes Next?
With the end of the case Trump called the ‘big one,’ his legal options appear to have fizzled. It is possible Trump allies who lost in lower courts could seek to appeal more cases to the Supreme Court.
But those appeals wouldn’t likely reach the court until after Monday, when the Electoral College meets.
And the Texas appeal already included even far-fetched appeals from lower court cases, such as claims that voting machines ‘flipped’ votes from Trump to Biden.
The new Congress will convent on Jan. 3.
Congress meets in a joint session on Jan. 6, the day after the Georgia run-off elections.
It presents an opportunity for political fireworks, but it there are procedures in place for both chambers voting on any challenges to the electors that emerge.
According to the Electoral Count Act, if a state only sends one set of electoral votes, they will be counted unless both chambers ‘determine that they were not “regularly given” by “lawfully certified” electors,’ according to a Lawfare blog on the subject.
The Texas suit seeks to have the four states delay their participation, despite the Constitution’s call for a single meeting.
‘There are 20 million reasons’ the case will fail, Republican election lawyer Ben Ginsburg told CNN this week, referencing the number of people who would be disenfranchised if the Court decided as Texas proposes. ‘Now this is just a sour grapes case,’ he said.
Case Trump called ‘the big one’ featured Mellissa Carone
The Supreme Court Texas case, filed this week, features an affidavit by Mellissa Carone, whose wild and antagonistic testimony went viral and got treated to a sketch on Saturday Night Live.
It references a case filed in Michigan supported by the affidavit, and it includes her sworn statement in the appendix for the case.
Carone was recently on probation after initially being charged with a computer crime.
Trump on Wednesday night told a White House Hanukkah party that he is going to ‘win this election’ if Supreme Court judges have ‘courage and wisdom’ to overturn results.
This came after Trump’s new lawyer produced a filing claiming there is something ‘deeply amiss’ in the election results.
The lawyer, John Eastman, had also penned an op-ed this summer doubting whether Vice President-elect Kamala Harris was eligible for office despite her being born in California.
The legal brief with Trump’s name on it, included a motion for Trump, identified as the president, ‘to intervene in his personal capacity as candidate for re-election’.
The brief includes many of the same arguments Trump has put forward on his Twitter account – including Wednesday, when Trump tweeted no candidate has ever lost the White House while carrying Florida and Ohio.
‘The fact that nearly half of the country believes the election was stolen should come as no surprise,’ according to the filing.
‘President Trump prevailed on nearly every historical indicia of success in presidential elections.
For example, he won both Florida and Ohio; no candidate in history—Republican or Democrat—has ever lost the election after winning both States.’
It also relies on statistical claims about the vote, in a race Trump has claimed was ‘rigged’ despite Joe Biden getting 7 million more votes than he did.
‘This, despite the fact that the nearly 75 million votes he received—a record for any incumbent President—was nearly 12 million more than he received in the 2016 election, also a record (in contrast to the 2012 election, in which the incumbent received 3 million fewer votes than he had four years earlier but nevertheless prevailed).’
‘These things just don’t normally happen, and a large percentage of the American people know that something is deeply amiss,’ according to the filing, which comes after passage of the ‘safe harbor’ deadline and after enough states certified their vote for Joe Biden to win the Electoral College.
Trump has asked Texas Sen. Ted Cruz to argue the case if the Supreme Court decides to listen to its merit.
Cruz argued numerous cases before the Supreme Court before he was elected to the Senate and been a loyal Trump defender, although he also ran for president in 2016.
Attorney John Eastman, pictured above, who filed the motion for Trump to intervene in the Texas lawsuit, penned an op-ed this summer doubting whether Vice President-elect Kamal Harris was eligible for office despite her being born in California
By way of remedy, Trump asks that the vote be thrown out and for the high court to ‘direct’ that state legislatures ‘have the authority to appoint a new set of Electors in a manner that does not violate the Electors Clause, or to appoint no Electors at all’ – which would have the result of nullifying millions of votes in the four states.
It also seeks to award costs to the plaintiff for the intervention, as well as ‘such other relief as the court deems just and proper.’
President-elect Joe Biden won 306 Electoral College votes compared to 232 for Trump, while winning 81 million votes nationwide compared to 74 million for Trump.
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