Texas made history once again last week with Attorney General Ken Paxton’s lawsuit attempting to overturn the presidential election. Rarely has such a small man made such an audacious and ridiculous demand on such a great stage.
What gave the gambit gravitas was neither the suit’s legal argument nor its thin presentation of actual facts, but the moss it gathered before it landed. President Donald Trump called it “the big one.” Seventeen other Republican attorneys general joined the lawsuit. More than 100 Republican members of Congress, including 14 from Texas, joined a supporting brief.
Paxton is a man who was caught on camera trying to filch a thousand-dollar pen left behind by a fellow lawyer when going through security screening at the Collin County Courthouse. He’s a man who is under indictment for getting fellow legislators to buy stock in a failing startup without disclosing that he was being paid to push the stock. He’s a man who asked a campaign contributor to hire his mistress.
He’s a man who is now under FBI investigation (his office was served a subpoena last week) after seven of his top lawyers in the AG’s office accused him of possible bribery and other crimes.
Yet here he was seeking to effectively nullify the presidential selection of a record 81.3 million U.S. citizens, 7 million more than chose Trump.
Paxton’s lawsuit focused on victories by Biden in four states. His evidence of malfeasance by the four states included an example of statistical quackery by a California economist claiming that the odds of Biden winning were one in a quadrillion. Paxton alleged 80,000 absentee ballots in Georgia had forged signatures, but offered not a scintilla of proof.
In his filing Trump’s lawyer didn’t even allege fraud, just that the “unlawful actions of election officials effectively destroy the evidence by which the fraud may be detected.” The standard of proof suggested is not “beyond a reasonable doubt” or even “by a preponderance of the evidence.” It is: “They might have done it.”
Legal experts around the nation ridiculed Paxton’s filing. Their judgement was confirmed by the U.S. Supreme Court, which took only four days to toss it, ruling that Texas had no right to sue. “Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections,” the court ruled Friday evening.
Two of the court’s most conservative members, Justices Clarence Thomas and Samuel Alito, objected that the court was required to hear the case, but even the three justices appointed by Trump himself disagreed.
One of the pro-Trump talking points is that he was merely exercising his rights by pursuing lawsuits or encouraging supporters such as Paxton to do so. That is not likely a principle promoted by Texans for Lawsuit Reform, a group that with the help of Republicans such as Gov. Greg Abbott has made it harder for citizens to sue in areas including medical malpractice.
By the time Paxton filed, more than 50 suits have been filed by Trump and his allies in attempting to overturn the election. Only one succeeded, voiding a small number of late Pennsylvania mail ballots. None of the others reached a jury. Paxton’s suit merely rehashed charges rejected by trial and appellate judges in the other cases. The question arises: After what point do baseless lawsuits become frivolous? After losing 10? 20? 30? 50?
Paxton’s risible attack on democracy was doomed from the start and it is easy to laugh him off. But what is not funny is the 17 other attorneys general who, like Paxton, debased their own states’ autonomy by seeking a precedent that would empower any state to challenge the elections of others. Nor the fact that more than 100 congressmen supported a cynical effort to overturn the clear decision of the American people.
Particularly pathetic was Texas Sen. Ted Cruz’s enthusiastic response to Trump’s request that he argue Paxton’s case before the Supreme Court. (Trump’s presumption that he should choose who would argue Paxton’s suit may have shattered a Paxton fantasy.)
Cruz, who attended Princeton University and Harvard Law School and has argued before the Supreme Court nine times, is smart enough to know that the suit had no merit. He also knows that Trump’s public claims of massive fraud are as honest as Trump’s charges in 2016 that Cruz’s victory in the Iowa caucus was due to fraud, or that Cruz’s father was with Lee Harvey Oswald shortly before he assassinated President John F. Kennedy.
Paxton’s suit and Cruz’s agreement to be its champion confirm national stereotypes of Texas. But it could have been worse. Imagine the nightmare if Joe Biden had carried Texas by, say, 10,000 votes.
Paxton and Cruz would have been joined by Lt. Gov. Dan Patrick in charging massive fraud. This is not idle conjecture. Patrick, Trump’s Texas campaign chairman, said in a radio interview before Election Day that Democrats would “use COVID as an excuse to steal the election, and that’s what they’re trying to do everywhere.”
Abbott would be in an awkward position. He had a lukewarm response to Paxton’s lawsuit, but given Texas’s 38 electoral college votes, he would have faced the sort of pressure from Trump that the president has put on Georgia Gov. Kemp. In a tweet this week Trump called Kemp a “fool” and wrote: “Demand this clown call a Special Session and open up signature verification NOW.”
In that atmosphere, elections officials in large counties such as Bexar County elections administrator Jacquelyn Callanen would, like election officials all over the country, be the targets of vicious threats as Texas became awash in conspiracy theories.
Texas Republican State Chairman Allen West, who called for states to secede in the wake of the Supreme Court quashing of Paxton’s suit, would lead the madness.
There is some sanity left among conservatives in the Texas Republican party. Sen. John Cornyn and Rep. Chip Roy (R-Austin) both opposed Paxton’s suit.
“I do not understand the legal theory,” said Cornyn, a former Texas attorney general. “I don’t want other states having a chance to change Texas law based on a similar effort.”
Roy, formerly Paxton’s top assistant in the AG’s office, called the lawsuit a “dangerous violation of federalism” in a series of posts Thursday on Twitter.
Paxton, however, doubled down after the Supreme Court’s rejection, issuing an Orwellian statement.
“It is unfortunate that the Supreme Court decided not to take this case and determine the constitutionality of these four states’ failure to follow federal and state election law,” he said. “I will continue to tirelessly defend the integrity and security of our elections and hold accountable those who shirk established election law for their own convenience.”
It needs to be plainly stated. Paxton attempted to “defend the integrity” of our elections by reversing, without a trace of evidence of massive fraud, an election decided by a clear majority of both the voters and the electoral college. And those elections officials who he said “shirk established election law for their own convenience” were honest officials who added to their work by expanding early voting and mail-in voting in order to help protect both voters and poll workers.
In this election, these were the patriotic defenders of democracy and Paxton and his ilk are the ones trying to steal the election.