Texas Attorney General Ken Paxton has asked the Supreme Court to do something he has never done before: disenfranchise millions of voters in four states and reverse the results of the presidential election.
From a legal point of view, the case is extremely problematic and fraught with procedural and material deficiencies, according to electoral law experts.
And for his argument to be successful – a result that jurists believe is highly unlikely – a majority of the nine judges would have to overlook a debunked claim that President-elect Joseph R. Biden Jr.’s chances of winning are “less” than one in a billiards. “
Mr. Paxton is a compromised individual charged in a securities fraud case, separately charged by several former employees, of misusing his office to aid a political donor.
Here are some reasons why this case is unlikely to be “the big one,” as President Trump has called it.
The legal argument of the lawsuit is deeply flawed, legal experts said.
Texas does not appear to be eligible to pursue the case, which would extend the deadline for certification of presidential voters in Georgia, Michigan, Pennsylvania and Wisconsin on Monday. It is based on a novel theory that Texas can determine how other states conduct their elections because voting irregularities elsewhere violate the rights of Texans.
The Paxton case fails to determine why Texas has the right to interfere in the process through which other states cast their votes in Electoral College, said Edward B. Foley, Ohio State University professor of law and director of the electoral law program. The power to conduct elections rests with states individually and not in a collective sense, as Paxton’s lawsuit implies.
“They all do what they do,” said Mr. Foley. “If Texas were trying to complain about what Georgia, Pennsylvania, and these other states have done, it would be similar to Massachusetts complaining about how Texas elects its senators.”
Usually attorneys general protect their rights and are cautious when the Supreme Court intervenes, which Foley says makes this case unusual. “This is just the opposite,” he said. “It would be an unprecedented encroachment on state sovereignty.”
The four states named in the lawsuit denounced it on Thursday and asked the court to reject it. Michigan attorney general Dana Nessel accused Mr. Paxton and other Trump allies of “conducting a disinformation campaign that unfoundedly attacks the integrity of our electoral system”.
The means the lawsuit seeks – disenfranchising millions of voters – would be unprecedented in the history of the nation.
Even if the lawsuit was correct, it was almost certainly late because the pre-election procedures challenged by Texas were in place.
A letter from the Supreme Court against the motions of prominent Texas Republicans, including former Senator John Danforth of Missouri and former Governor Christine Todd Whitman of New Jersey, said the Texas files ridiculed federalism and the separation of powers.
“It would violate the most fundamental constitutional principles of this court,” said the letter, “to serve as a judicial process for presidential election disputes.”
Mr Trump and his supporters have often referred to Bush v Gore, the Supreme Court case that ruled the 2000 elections, as a hopeful historical precedent for their side. But unlike Bush versus Gore, there is no obvious constitutional issue.
“It looks like an inherently political suit,” said Mr Foley.
The lawsuit uses statistical arguments that statisticians have termed “weird”.
Mr. Paxton’s filing repeatedly cites an analysis by a California economist which statisticians say is nonsensical. The analysis showed that Mr Biden’s chances of winning the four battlefield states in question were “less than one in a quadrillion”.
Economist Charles J. Cicchetti, who donated to Mr Trump’s campaign in 2016, came to the tiny chance by pretending to use the results of the 2016 election as a setback. His flawed reasoning was this: If Mr. Biden had received the same number of votes as Hillary Clinton in 2016, he wrote, victory would have been next to impossible.
But, of course, Mr. Biden did not get the same number of votes as Mrs. Clinton; he received over 15 million more. A candidate is also not expected to receive the same number of votes as a previous candidate.
Economy & Economy
Apr. 10, 2020, 4:09 pm ET
That 1: 1 quadrillion figure has caught on on social media and was promoted by the White House press secretary. However, a number of experts have found that Mr Cicchetti’s figure and analysis are easily refutable.
Stephen Ansolabehere, a government professor at Harvard University who runs the election data archive, called this analysis “weird”.
The analysis left out a number of obvious, relevant facts, he said: “The context of the elections is different, there is a Covid pandemic going on, people are coming to different conclusions about the government, Biden and Clinton are different candidates.”
Using the same logic and formula, if Mr Trump had received the same number of votes in 2020 as he did in 2016, there is also a quadrillion billion chance that Mr Trump in 2020 would surpass his 2016 total, said Stephen C. Preston, professor of mathematics at Brooklyn College. “But that doesn’t prove Trump cheated, it just shows that the numbers are different,” he said. “It’s like finding a small chance that 2 equals 3.”
Mr Cicchetti also wrote that votes counted earlier in the process and votes counted later favored different candidates and that there was “a one to many more quadrillion chance” that the votes counted in the two periods of time from the same groups of voters.
But that’s exactly what was to be expected: Democrats tended to prefer postal votes, and those ballots were later counted in the four battlefield states, while Republicans preferred to vote in person on election day and those ballots were counted earlier.
“The order and pace of the vote count was different from previous elections,” said Amel Ahmed, professor of political science at the University of Massachusetts Amherst.
What Mr Cicchetti wrote wasn’t particularly illuminating, experts agreed.
“The model is silly,” said Philip Stark, professor of statistics at the University of California at Berkeley. “This is not science or statistics. It’s not even a good cartoon of elections. “
The Texas Attorney General is embroiled in a scandal.
While the legal rationale of Mr. Paxton’s case may be new, the impetus behind it is not. It was just the latest example of a Trump loyalist using the power of public office to come to the rescue of a president whose support base remains deeply attached to him and who, according to polls, was overwhelmingly unfair.
Paxton, 57, has been under a cloud of scandals since October when seven of his senior executives accused their boss of bribery, office abuse and other misconduct. Her allegations, which Mr. Paxton has denied, involve a wealthy developer and political donor, Nate Paul, whose home and offices were raided by federal agents in August.
The aides accused Mr. Paxton of “potential criminal offenses,” including assisting in defending Mr. Paul and intervening the developer to obtain a favorable verdict in a lawsuit between his property and a nonprofit organization.
Mr. Paxton was first elected in 2014 and has served much of his tenure on pending securities fraud charges arising from events prior to his assumption of office. The indictment alleges that Mr. Paxton sold technology stocks to investors in 2011 without disclosing that he received 100,000 shares in compensation and not registering with securities regulators.
Even so, Mr. Paxton has maintained a high national profile – and conservative affection – in his tireless efforts to dismantle Obama-era politics and support the causes of the Trump administration.