Texas v. Pennsylvania

Texas v. Pennsylvania (official style: State of Texas v. Commonwealth of Pennsylvania, State of Georgia, State of Michigan, and State of Wisconsin) was a United States Supreme Court case filed on December 8, 2020 by Texas Attorney General Ken Paxton, seeking relief in the ongoing 2020 United States Presidential Election.

The filing was quite unexpected: Texas is a fairly solid Republican state and (despite polls to the contrary) voted in the majority for President Donald Trump, and was not involved in any significant controversy in the conduct of its election (in fact, the Texas Secretary of State refused to certify any of the Dominion Voting Systems machines for use in the election due to its own testing, which found significant issues with potential hacking). As the matter involves one sovereign state suing another (or four, in this case), the Supreme Court has not only original jurisdiction, but exclusive jurisdiction (i.e. the suit could not be filed in a Federal District Court). The case was docketed shortly after it was filed and the defendants were given until 3PM EST on December 10 to respond.

Unlike the many other cases which contained allegations of fraud (e.g. ballot stuffing, secret algorithms in the voting machine software), the Texas case centered on the Electors Clause of the United States Constitution, specifically that the Legislatures of each State have the sole province of determining how Presidential Electors are chosen (and, by extension, the election laws of the state). Texas argued that the actions taken by members of the Executive and Judicial branches (by "amending" electoral laws, either by "settlements" of "friendly lawsuits" filed by partisan organizations, or unilateral changes under the guise of a "public health emergency" from the COVID-19 pandemic), not ratified by the Legislatures of those states, violate the Electors Clause. By doing so, it has denied the voters of Texas due process and equal protection by allowing states to change their election laws without legislative consent for the benefit of a preferred political candidate.

However, in an order issued on December 11, 2020, the Court rejected the filing, stating that Texas had no standing in the case. Justices Alito and Thomas made separate statements, stating that in their opinion the Court could not reject the filing based on original jurisdiction, but would have not granted relief anyhow.

The Court should have found that Texas has standing, and it should have granted the relief that Texas sought.

Related Filings

The docket for this case, containing links to the original complaint filed, all responses and replies, and motions to intervene and/or participate as Amici, can be found here:

The following parties have filed to either officially intervene as parties of interest, or to file amici briefs, are listed below:

Intervention

• President Trump
• Six states (Missouri as lead state, Arkansas, Louisiana, Mississippi, South Carolina and Utah; all voted in the majority for President Trump)
• A group comprised of members of the Michigan and Pennsylvania legislatures, along with voters from Michigan, Georgia, and Wisconsin

Amici in Support

• Seventeen states (all of which voted in the majority for President Trump, also led by Missouri)
• Attorney General Mark Brnovich of Arizona (which purportedly voted for Biden, and whose results were certified by RINO Governor Doug Ducey)
• A group of "Constitutional Attorneys" (the most notable being former Alabama Supreme Court Justice Roy Moore)
• The Christian Family Coalition of Florida
• The Speaker and Majority Leader of the Pennsylvania House of Representatives (who are both Republicans)
• A separate group of 70 Republican Pennsylvania state representatives, not including the Speaker and Majority Leader
• Members of the Arizona, Alaska, and Idaho state legislatures, and the Lieutenant Governor of Idaho
• The Justice and Freedom Fund
• 27 Members (plus one Member-Elect) of the Georgia General Assembly (representing both chambers)
• Lin Wood
• Citizens United, Citizens United Foundation, and The Presidential Coalition, LLC
• "New California State" and "New Nevada State" (a group seeking to create new states from the existing territories of those states)
• Over 125 Republican House of Representatives Members, including House Minority Leader Kevin McCarthy

Amici in Opposition

• A group of individuals (many of who previously served in Congress and are considered to be part of the Deep State):
• Twenty states (all but one of which voted for Biden) along with the District of Columbia and the Territories of Guam and the United States Virgin Islands (the latter which do not have any Electoral College representation):
• The City of Detroit
• The Governor of Montana in his official capacity
• The Democratic Caucus of the Pennsylvania Senate

Neutral Amici

• Ohio
• A group of 24 Pennsylvania Republican state senators

Plaintiffs' Arguments

The 42-page bill of complaint within the filing contained the bulk of the arguments made by the State of Texas and the supporting amici. Rather than trying to prove voter "fraud" as such, the case rested more on a separation of powers argument, arguing that government officials in the four states in question usurped the authority of the state legislatures to revise statutes regulating the election process. Not only was this unconstitutional in and of itself, the plaintiffs went on to point out the election results engineered by such actions, since they were part of a federal election, affected every other state in turn. "Voters who cast lawful ballots," the suit stated, "cannot have their votes diminished by states that administered their 2020 presidential elections in a manner where it is impossible to distinguish a lawful ballot from an unlawful ballot." Since all states were the injured parties, it went on, the individual state governments could not simply be left to clean up their own problems; the Supreme Court had original jurisdiction and therefore must intervene.

The plaintiffs noted further that there was already some precedent for the Court intervening in such state-level controversies, as earlier in 2020, during the coronavirus pandemic, it had rejected the attempts of some state executives to impose restrictions on religious organizations, using the pandemic as a justification. Moreover, Justices Neil Gorsuch and Samuel Alito had previously spoken out against the arbitrary altering of established rules during a crisis more abstractly.

The suit then examined the facts of the case in each of the four states in turn. Though specific conditions varied from one to the other, it alleged that there were at least four commonalities in each offending state:

• The decision of state executives to drastically expand absentee and mail-in voting created "a massive opportunity for fraud";
• The defendant states had made it impossible to separate the legal mail-in ballots from the illegal ones (in the case of Pennsylvania, in direct defiance of an order from the Court to do so);
• Each state had significantly weakened its security measures against fraud, despite knowing such a large influx of absentee and mail-in ballots heightened the risk of fraud occurring; and
• The counting of unlawful ballots in each state occurred on a scale greater, perhaps far greater, than the difference in total votes between Donald Trump and Joe Biden.

Pennsylvania

According to the plaintiffs, the manipulation of results in Pennsylvania, more so than the other three states, rested heavily on the use of "friendly lawsuits," whereby two parties to a lawsuit, not genuinely in conflict with each other, nonetheless go to court in order to obtain a mutually-favorable outcome via a declarative statement from the judge.

At least one such "friendly lawsuit" involved then-Secretary of State Kathy Boockvar: League of Women Voters of PA v. Boockvar (2020), which ended in a declarative judgment that the state of Pennsylvania did not have to segregate mail-in ballots with signature irregularities from those without them, despite the fact at least four state laws expressly defined signature requirements and stipulated the separation of any ballots which violated those requirements. Another "friendly lawsuit," concluded shortly before the presidential election, ended in a 4-3 ruling from the state supreme court to extend the deadline for receiving mail-in ballots until three days after Election Day, and advised state election officials to presume that ballots without a postmark date had been mailed on time. This violated another state law, that all ballots were due by 8:00 p.m. on Election Day. Boockvar would later claim that only about 10,000 ballots were received after this deadline, but since the state did not segregate ballots, this statement is impossible to verify.

An additional violation of state election law occurred with regard to "poll watchers," which were to be granted access to the opening, counting, and recording of absentee ballots. A considerable amount of video evidence, however, demonstrates that at numerous locations in Philadelphia and Pittsburgh, election officials (all Democrats) denied poll watchers such access.

The suit goes on to note that Boockvar also urged local election officials to contact--prior to the election--those voters who had mailed defective ballots, so that they could be "cured," or corrected. This violated an additional three state laws:

• That mail-in ballots cannot be canvassed earlier than 7:00 a.m. on Election Day (a so-called "pre-canvass" is possible, but must be announced 48 hours in advance).
• Before being canvassed, mail-in ballots have to remain sealed in locked containers. (This also raises the question of how election officials could know the ballots needed to be cured, if they were in fact still locked away.)
• The manner in which the ballots were canvassed deviated from that laid out by state law.

Because of these violations, the suit concludes, election officials must have illegally unsealed the ballots and followed none of the procedures set out by state election law in doing so.

At this point, the suit turns to the so-called "Ryan Report" issued by the Pennsylvania House of Representatives in November 2020, which found that 118,426 mail-in ballots had postmark dates which could not be credited based on their dates of receipt by election officials. 58,221 of those ballots were returned before the listed date on which they were mailed, and 51,200 were returned on their mailed date, while most of the remainder had no mailed date at all. It further notes a previous ruling from Justice Alito that ballots with irregularities had to be separated, a ruling that the state of Pennsylvania promptly ignored. The reasoning, it suggests, seems to have been that once the ballots were combined, the Supreme Court wouldn't dare to throw all of them out, since many would have been cast in a legitimate manner.

The case concludes that all of these violations must have been committed with the express purpose of giving an advantage to the Biden presidential campaign: not only are Boockvar and most of the other participants in the "friendly lawsuits" Democrats, but Philadelphia and Pittsburgh, in which poll watchers were blocked from observing the counting of votes, are the major Democratic strongholds in the state, and 70% of requests for mail-in ballots were from registered Democrats. Regardless of intent, though, a variety of established laws on state elections were demonstrably violated, and, constitutionally speaking, the results of the election cannot be certified by the Electoral College or by Congress.

Georgia

As far as the breaking of electoral laws in Georgia is concerned, the suit especially singles out Governor Brian Kemp and Secretary of State Brad Raffensperger (both Republicans), for having unilaterally, and without legislative approval, abandoned the established method of signature verification for absentee ballots. As in Pennsylvania, state law stipulates that absentee ballots cannot be opened prior to the opening of the polls on the morning of Election Day; nonetheless, Raffensperger and the state election board adopted a rule to begin opening and processing such ballots approximately three weeks before that point.

Moreover, and again much like how events unfolded in Pennsylvania, the Secretary of State and Georgia Democrats used a "friendly lawsuit" to evade a statute that absentee voters who want to "cure" their ballots can do so (up until three days after Election Day), provided a) the ballot has been rejected on account of a defective signature or some other error, and b) a clerk on the election board then contacts the voter in writing to come and correct it. The lawsuit Raffensperger and Georgia Democrats used to violate this, since known as "The Settlement," ended in a ruling that a ballot with a defective signature could only be rejected if two out of three registrars agreed it was defective (and all three must then write their names on the ballot and explain their reasoning). The ruling also required that notice of the rejection be provided by telephone, if possible. Moreover, election officials were encouraged to provide registrars with guidance and training materials affiliated with the Georgia Democratic Party.

"The Settlement" thus made it nearly impossible to challenge ballots with a defective signature. The case observed that the rejection rate of absentee ballots was only 0.37% in the election, compared to 6.42% in the 2016 presidential election (prior to the adoption of these new rules). Since absentee ballots favored Biden by a nearly two-to-one margin, it continued, there is no reason to doubt that "The Settlement" was arrived at for the express purpose of favoring him in the election; indeed, simply normalizing the rejection rate would be far more than enough to flip the state to Trump. As in Pennsylvania, however, the constitutional issue in Georgia wasn't the number of ballots affected, or which candidate they favored, but the fact that state law was broken to count them.

Michigan

As with Pennsylvania and Georgia, the suit singles out the blatant violation of state electoral law by Michigan's executive-level officials, specifically Secretary of State Jocelyn Benson. Indeed, of all the Secretaries of State named in the suit, Benson's behavior might be considered the most brazen.

Since 2018, the Michigan constitution has contained a statute (M.C.L. § 168.759(3)) which specifies the means by which registered voters may request a mail-in ballot, if they so desire: 1) By a written request, signed by the voter in question; 2) by filling out an absentee voter ballot application form, provided by the clerk of the voter's city or township; and 3) by completing a federal postcard application. These are the only three conditions permitted for a Michigan voter to receive a mail-in ballot; prior to the 2020 election, however, and citing the ongoing coronavirus pandemic as justification, Benson's office mailed ballots to all of the state's ~7.7 million voters. This action was arguably the most audacious of the violations: not only is there no mention in the state constitution of the Secretary of State mailing voters a ballot without request, but that official is specifically excluded from the distribution of absentee ballots, a task delegated to the local clerk instead. At least as blatant was Benson's decision to allow absentee ballots to be requested online, without a signature or any other verification of identity: which was not only another violation of existing law in itself, but also, since absentee ballots in Michigan (as in Pennsylvania and Georgia) are predominantly Democratic, could only have had the result of pushing the final vote tallies in favor of Biden.

At least two other laws were broken during the vote-counting process on Election Day: one, that poll watchers and inspectors must have access to the counting and registering of votes, and two, that strict signature-verification requirements must be followed where absentee ballots are concerned. These requirements include the presence of a stamp or a written statement on the envelope containing the mailed ballot, indicating that the voter's signature was in fact checked and proven to match the signature on file with the state. Both of these were violated by local election officials in Wayne County (the city of Detroit and nearby suburbs), who allegedly (in the words of the suit) "made a conscious and express policy decision not to follow [the law]." In support of this, the suit cites an affidavit from Jesse Jacob, a long-time employee of the City of Detroit, who stated that she was "instructed not to look at any of the signatures on the absentee ballots" or "to compare the signature on the absentee ballot with the signature on file."

Like Benson's actions (and those of her counterparts in Pennsylvania and Georgia), these actions by Wayne County electoral officials were not only alterations to state election law that were unapproved by the legislature, and therefore unconstitutional; they also, the filing continued, "resulted in a number of constitutionally tainted votes that far exceeds the margin of voters separating the candidates in Michigan." In this particular instance, it can also provide a specific estimate of such votes: all absentee ballots have registration numbers to track them back to individual voters; however, 174,384 of the ballots counted in Wayne County (31% of the total) did not have such numbers, strongly suggesting that they were counted multiple times. Those ballots alone exceed the reported vote margin in the state between Trump and Biden, and since Republican poll watchers in the county were (illegally) kept out of the room where counting occurred, they cannot be legitimately accounted for. This, and the unconstitutionality of what state and local officials did, the suit concludes, is reason to toss the state's results.

Wisconsin

Compared to the other states named in the suit, Wisconsin is presented as something of an outlier; its Secretary of State is not identified as an especially culpable official, and the case notes that it has on record some very strongly-written laws to prevent election fraud. The alleged violation of these laws came from other quarters, particularly on the local level.

The case focuses on a particular statute (Wisc. Stat. § 6.84(1)) which clearly states that while a number of drop-off locations for absentee ballots may be set up in individual localities, each must be staffed by responsible officials; they cannot be left unmanned. Nonetheless, a combined total of around five hundred unmanned drop-boxes were set up by the mayors of Green Bay, Kenosha, Madison, Milwaukee, and Racine--Wisconsin's five largest cities, all of them predominantly Democratic. Beyond the fact of their being unmanned, the very use of drop-boxes, as opposed to drop-off sites, violates another law (Wisc. Stat. § 6.85(3)), which specifies that such locations must be fully functional sites, staffed by the municipal clerk, the board of election commissioners, or their employees. Any ballot mailed or delivered via drop-box (per Wisc. Stat. § 6.87(6)) "may not be counted." And yet another law (Wisc. Stat. § 6.84(2)) stipulates that "ballots counted in contravention of the procedures specified in those provisions may not be included in the certified result of any location."

Wisconsin Democratic officials appear to have acted in the belief that they could use the coronavirus pandemic to ignore these various laws. One means of doing so was by invoking "indefinite confinement" (IC), by which those who are disabled or suffering from severe illness or the effects of old age can obtain an absentee ballot without having to show identification. As early as the end of March 2020, the state election committee, as well as the county clerks for Dane (Madison) and Milwaukee Counties began advising residents to declare themselves IC on account of the pandemic. After Wisconsin Republicans filed suit in protest, the state Supreme Court ruled unanimously in their favor and ordered a halt to the practice of declaring all voters IC; however, while Democratic election officials complied and ceased adding new names to the IC list, they did not remove from the lists those who had been added to it before the Court's ruling--another violation of state election laws, as voters have to tell the county or municipal clerk once they cease to qualify for IC, and the clerk must then remove them from the list. As a result, nearly 216,000 voters were labeled as IC and did not have to show ID or even have their signatures verified when obtaining and casting absentee ballots. The suit notes that only about 57,000 voters fell into the IC category in 2016; that of those 216,000 voters, 68,000 were in the Democratic strongholds of Dane and Milwaukee Counties (compared to 17,000 in 2016); and that the margin of Biden's alleged victory in Wisconsin was 20,565 votes.

The suit noted further that the City of Milwaukee's Election Commission also ignored state laws that absentee voters must complete and have notarized an address verification form, witnessed by an adult who must provide his or her address as well. If a ballot is returned without this form, or if the information on it is incomplete, election officials must return the ballot to the voter, who must complete it before the ballot can be counted. Instead, the commission declared that if there wasn't an address for the witness, they would find it on behalf of the voter and fill out the missing information in red ink. Affidavits have been provided by multiple witnesses to the effect that they witnessed this being done.

The suit also references testimony from Ethan Pease, a driver for the USPS who stated under oath that Postal Service employees were backdating ballots, at the direction of their supervisors, and that on Wednesday, November 4, his supervisor told him that 100,000 ballots were missing. Again, as the case stresses, Biden supposedly won Wisconsin by just over 20,000 votes.

External Link

• Original Filing by Texas
• Motion to Intervene by President Trump
• Pennsylvania Response
• Michigan Response
• Georgia Response
• Wisconsin Response
• Texas (Reply in Support of Motion For Preliminary Injunction)
• Texas (Reply in Support of Motion For Leave to File Bill of Complaint)