Here's why legal experts say Texas lawsuit to overturn election results is a long shot

Here's why legal experts say Texas lawsuit to overturn election results is a long shot
Alice Linahan Voices Empower/Wikimedia Commons

By Emma Platoff, The Texas Tribune

Dec. 9, 2020

"Trump, Republicans pin hopes on Texas lawsuit to overturn election results, but legal experts say it's a long shot" was first published by The Texas Tribune, a nonprofit, nonpartisan media organization that informs Texans — and engages with them — about public policy, politics, government and statewide issues.

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President Donald Trump on Wednesday latched on to a long-shot Texas lawsuit seeking to overturn a presidential election that handed the White House to Joe Biden.

Legal experts say Texas Attorney General Ken Paxton's effort to contest election results of four key battleground states is all but certain to fail. But it has drawn support from the Republican attorneys general of 17 other states.

As the president's legal team loses case after improbable case in federal district and appellate courts, the Texas lawsuit offers a major advantage: It goes straight to the top. Under a special legal avenue unique to states, Paxton filed the case directly with the U.S. Supreme Court, a body Trump has suggested could deliver him the victory that voters did not.

“This is the big one!" the president tweeted Wednesday morning. His legal team sought to intervene in the case later Wednesday.

The Texas lawsuit takes issue with changes to election procedures in four battleground states: Georgia, Pennsylvania, Michigan and Wisconsin. Paxton argues those changes were unlawful and call into question Biden's victories in those states. He is asking the high court to block the critical battlegrounds from participating in the Electoral College.

Trump personally asked U.S. Sen. Ted Cruz, R-Texas, to argue the case before the court if the justices agree to hear it, The New York Times first reported Wednesday. Cruz — who argued several cases at the high court as Texas solicitor general — agreed, his office confirmed.

Although the Supreme Court has a six-member conservative majority, including three justices appointed by Trump, it has so far shown no interest in siding with him in the election cases his campaign has lobbed. On Tuesday, it decisively rejected Pennsylvania Republicans' effort to overturn Biden's victory there in a one-sentence order with no dissents.

Legal experts and court watchers expect a similar outcome in the Texas case. The court has asked for a response from the four battleground states Texas is suing, setting a Thursday deadline, but has given no indication about how it will decide the matter.

“This is the Hail Mary with time running out the clock kind of play here," said David Coale, an appellate attorney in Dallas. “This is really the last little window to sort of sneak in there and try to get a court involved."

States have a special legal ability to take cases directly to the Supreme Court, though such cases are rare, and more typically involve boundary disputes like water rights. If the high court accepts Texas' argument that it can sue the four battlegrounds in this case, Coale said, “then any state can sue any other state about just about anything."

Even if the court gets past tricky procedural issues, Texas' case faces an uphill battle.

Officials in the battleground states have roundly rejected Paxton's argument, calling it “false," “irresponsible," “a publicity stunt," “genuinely embarrassing," “beyond reckless" and “beneath the dignity of the office of attorney general."

They also point out that many of the claims Paxton makes about election irregularities in their states have already been litigated and roundly rejected. Experts, state election officials and U.S. Attorney General Bill Barr have all said there is no evidence of voter fraud on a scale that could have affected the outcome of the election.

“Texas alleges that there are 80,000 forged signatures on absentee ballots in Georgia, but they don't bring forward a single person who this happened to. That's because it didn't happen," said Jordan Fuchs, Georgia's deputy secretary of state.

Still, the long-shot odds of the Texas case have not kept it from sparking hope among Republicans in Texas and across the country.

Lt. Gov. Dan Patrick, a firebrand conservative who has served as Trump's Texas campaign chairman, said Paxton was right to challenge the battleground states, as did state GOP Chairman Allen West.

Gov. Greg Abbott, a former Texas attorney general, treaded a characteristically careful line, signaling support for the lawsuit insofar as it “tries to accelerate the process, providing certainty and clarity about the entire election process."

But U.S. Sen. John Cornyn, who is also a former Texas attorney general, was more critical of the lawsuit, telling a reporter, "I frankly struggle to understand the legal theory of it."

"Why would a state, even such a great state as Texas, have a say so on how other states administer their elections?" Cornyn asked. "I'm not convinced."

Texas was alone in filing the case this week, but on Wednesday, 17 states with Republican attorneys general signed onto an amicus brief at the high court backing Texas.

“Missouri is in the fight," said the state's attorney general, Eric Schmitt, who led the filing.

Beyond its unusual requests, the case was unusual for the attorneys who are arguing it.

Paxton was listed as the state's lead attorney on the case, a highly unusual move for the attorney general, who has rarely been involved in such a hands-on way in the state's cases.

Texas Solicitor General Kyle Hawkins, the state's top appellate attorney and a former clerk at the U.S. Supreme Court, didn't sign his name to the filing. Hawkins is the agency's appellate expert, so it's unusual for him not to appear on the case, legal experts said. Neither Hawkins nor the agency answered questions about why he was not involved.

Instead, the agency appears to have brought on an outside attorney, Lawrence Joseph, to handle the high-stakes case.

But court documents show he has often played a role in politically hot litigation. According to his website, he formed his firm in 2003 to undertake “politically incorrect" representation.

In 2014, Joseph authored a friend-of-the-court brief on behalf of dozens of Texas Republicans, including U.S. Sens. John Cornyn and Ted Cruz and a number of members of Congress. In it, he argued against the Affordable Care Act. The case was filed by Steve Hotze, a prominent conservative activist in Houston who has sued Abbott and others numerous times this year over pandemic-related restrictions and changes to election protocols.

In 2020, Joseph wrote another amicus brief, siding with Trump, on behalf of the conservative group Eagle Forum Education and Legal Defense Fund. He argued that Congress lacked the power to subpoena Trump's tax returns.

The Texas attorney general's office did not respond to questions about how much Joseph is being paid for his work on the case.

Paxton, who has been indicted since 2015 on felony securities fraud charges, has been facing fresh legal trouble this fall after eight of his top deputies told authorities they believed he broke the law in using the agency to do favors for a political donor. The FBI is reportedly investigating the allegations. Paxton has fired five of the eight whistleblowers and now faces a lawsuit from four of them, alleging wrongful termination. He has denied wrongdoing.

This article originally appeared in The Texas Tribune at https://www.texastribune.org/2020/12/09/texas-lawsuit-election-trump/.

The Texas Tribune is a member-supported, nonpartisan newsroom informing and engaging Texans on state politics and policy. Learn more at texastribune.org.

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