Texas Asks Supreme Court to Delay Next Week’s Electoral College Vote over Four States’ Voting Irregularities

The Attorney General of Texas, Ken Paxton, today announced the filing of a lawsuit by his state in the U.S. Supreme Court against the Commonwealth of Pennsylvania, as well as the states of Wisconsin, Michigan and Georgia over voting irregularities which he says have denied the constitutional rights of Texans and all Americans to a free and fair presidential election.

“Trust in the integrity of our election processes is sacrosanct and binds our citizenry and the States in this Union together,” said Paxton in a news release announcing the filing of the lawsuit. “Georgia, Michigan, Pennsylvania and Wisconsin destroyed that trust and compromised the security and integrity of the 2020 election. The states violated statutes enacted by their duly elected legislatures, thereby violating the Constitution. By ignoring both state and federal law, these states have not only tainted the integrity of their own citizens’ vote, but of Texas and every other state that held lawful elections. Their failure to abide by the rule of law casts a dark shadow of doubt over the outcome of the entire election. We now ask that the Supreme Court step in to correct this egregious error.”

Both the U.S. Constitution as well as federal statutes guarantee that the election process will be controlled only by state legislatures.

The “Electors Clause” of the Constitution – Article II, Section 1, Clause 2 – states:

“Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.”

Note the requirement, “… as the Legislature thereof may direct.” The Texas lawsuit alleges that election officials in those four states, rather than the legislatures, amended state laws to alter election procedures.

“Here is what we know,” Texas alleges in its Bill of Complaint. “Using the COVID-19 pandemic as a justification, government officials in the defendant states of Georgia, Michigan, and Wisconsin, and the Commonwealth of Pennsylvania (collectively, “Defendant States”), usurped their legislatures’ authority and unconstitutionally revised their state’s election statutes. They accomplished these statutory revisions through executive fiat or friendly lawsuits, thereby weakening ballot integrity. Finally, these same government officials flooded the Defendant States with millions of ballots to be sent through the mails, or placed in drop boxes, with little or no chain of custody and, at the same time, weakened the strongest security measures protecting the integrity of the vote—signature verification and witness requirements.”

Texas also noted the claims of electoral fraud pending in the four states which, it argues, ought to be thoroughly resolved before those states can certify their results. Although Texas offers no new evidence concerning those allegations, it does present a statistical analysis that it says ought to raise enough doubt about the integrity of the process that the justices should delay the Electoral College meeting on December 14.

“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,” Texas alleges.

If all states’ election certifications are allowed to stand as they are currently, former Vice President Joe Biden would receive 296 electoral votes, while President Donald Trump would receive 232. (Note: Wisconsin has not certified its results yet due to pending election litigation there, but at the moment that state’s 10 electoral votes would end up in Biden’s column.) A candidate needs 270 electoral votes to win. If a court order prevented the four states that Texas is suing from certifying their results by the time the Electoral College meets, that would only give Biden a total of 234 electoral votes.

In case no candidate reaches 270 votes, the 12th Amendment provides that the president will be elected by the House of Representatives, each state delegation casting only one vote. However, the Texas case does not request that the Supreme Court deny those four states their electoral votes, only that the scheduled vote of the Electoral College be delayed. According to Texas’ argument, the only date that really cannot be delayed, constitutionally speaking, is January 20 when the new presidential term begins.

The Supreme Court will probably act soon, one way or another, on Texas’ lawsuit. We will keep you apprised of any new developments.

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