President Donald Trump on Wednesday joined Texas in a last-ditch and unprecedented effort to persuade the Supreme Court to delay the Electoral College vote and block four states – Georgia, Michigan, Pennsylvania and Wisconsin – from casting votes for President-elect Joe Biden, who won the popular vote in each state. Trump argued that election officials in those states had “made a systematic effort to weaken measures to ensure fair and impartial elections” with their response to the COVID-19 pandemic.
Represented only by Chapman University law professor John Eastman, Trump sought permission to formally intervene in the case, Texas v. Pennsylvania. In the request, he complained that “nearly half of the country believes the election was stolen” because he had “prevailed on nearly every historical indicia of success in presidential elections.” As an example, Trump cited his victories in Florida and Ohio, writing that “no candidate in history — Republican or Democrat — has ever lost the election after winning both States.” In 1960, however, Richard Nixon won both Florida and Ohio but still lost the election to John F. Kennedy.
Trump, whose lawyers have unsuccessfully filed dozens of lawsuits in the lower courts alleging fraud and irregularities, told the justices that he does not need to show that fraud has occurred to prevail. All that he has to demonstrate, he contended, is that elections in the four states at issue “materially deviated from the ‘manner’ of choosing electors established by their respective state Legislatures.”
Texas filed its case against the four states directly in the Supreme Court on Monday. Texas’ attempt to go directly to the Supreme Court, rather than suing in a lower court, is a highly unusual use of the court’s so-called original jurisdiction, which is normally used to resolve interstate disputes over borders or water rights.
Trump’s request to join the case followed a “friend of the court” brief in support of Texas that was filed by Missouri and 16 other states with Republican attorneys general. They told the justices that Texas “raises serious concerns about both the constitutionality and ballot security of election procedures” in the four states, and they urged the justices to act on Texas’ plea quickly.
A group of prominent Republican lawyers and former senior government officials filed a “friend of the court” brief supporting the four states. They told the justices that there are “myriad” reasons to turn down Texas’ lawsuit but emphasized one: The “Constitution does not make this Court the multidistrict litigation panel for trials of presidential election disputes.” Texas’ claims, they argued, “make a mockery of federalism and separation of powers.”
Georgia, Michigan, Pennsylvania and Wisconsin are scheduled to file their response to Texas’ suit by Thursday at 3 p.m. EST.
This post is also published on SCOTUSblog.