Is This Really “The Big One”?

That’s what Trump’s calling the election lawsuit Texas is trying to get the Supreme Court to hear. And he’s itching to join in.

That suit: “Texas v Pennsylvania, et al.”, seeks to overturn votes in 4 states where Joe Biden has already been certified the winner: Pennsylvania, Georgia, Michigan, and Wisconsin.

The reason? They say Texans were harmed by those states’ electoral votes not going to their preferred candidate, Trump. And that harm was caused by those states not having sufficiently strict voting rules to prevent that from happening. Like the ones they had in Texas, where they did virtually nothing to make it easier for people to vote in the face of COVID-19, and fought real hard to block virtually any proposals that would’ve made voting during a pandemic easier. As we said yesterday, their suit doubles as a brag

And Texas is not even alleging fraud, just “irregularities”. Not fraud, but not having enough “safeguards against fraud.” So just really that those other states let COVID-19 make them get too soft.

Now of course, any rule changes for the 2020 Election due to COVID-19 or not, were put into place well before Election Day, and there was plenty of time to litigate all that stuff, and many states—especially Texas—did. Which would seem to be the biggest reason this action will likely fail: they knew all this ahead of time and either did or didn’t object then. Not until they got a result they didn’t want.

What Texas is doing, is trying a slightly different tack: they’re arguing that Georgia, for instance, should kind of be held liable for not doing enough. According to Texas. Because they allowed Trump not to get elected because they failed to create conditions where there was no other possibility but him getting elected. As they are virtually crowing is what they successfully did in Texas, so they want some kind of reward.

And since states decide their own election rules there was nothing they, Texas, could do about it at the time. Why not? They could’ve sued all 4 of these states back then. Also, states still do get to decide their own election rules as far as we know, so that would also be a reason their argument, coming now, is soft.

And we see another immediate problem with that reasoning, though we’re not lawyers: President-elect Biden won more than 5 and a quarter million votes in Texas, so the objective of those millions of Texas voters at least was ultimately fulfilled. So those voters actually weren’t “harmed”. But those Texans apparently also don’t count in the eyes of the Republicans who run the state.

17 other states’ Attorneys General, led by Missouri, are backing Texas up. Also not really alleging fraud, just that they kind of like Texas’ idea something’s fishy given the high unlikelihood in their collective mind that Trump could possibly lose, and now be allowed to lose.

This really is a bunch of Republican Trump die-hards in a bunch of states using their positions of power to attempt to throw away the votes of millions of people in states they don’t live in, only for the “sin” of failing to support President Trump. If you think we are either oversimplifying or exaggerating any of these arguments, we’re not. Here’s a link to the entire docket with all the briefs. Read them for yourself if you want.

The Supreme Court does have a unique role sometimes in deciding direct disputes between states, and Texas’ Attorney General—who it should be noted is under indictment himself for securities fraud, and according to the AP is currently under investigation by the FBI for possible bribery in a separate case, so badly in need of a pardon—is trying to exploit that.

Trump is also trying to join the suit as an individual, which is highly unusual in this type of suit, his argument to the Court built also not on allegation of fraud, but on something he’s been repeating often to anyone listening these days:

[President Trump] won both Florida and Ohio; no candidate in history—Republican or Democrat—has ever lost the election after winning both States.”.

Except that’s a lie. Richard Nixon lost to JFK while winning both those states. And even if it was true, it’s meaningless.

Now, we also want to warn you about a couple of things that may very well happen but shouldn’t freak you out if they do: even if the Supreme Court decides not to consider this case, at least a couple of Justices may dissent from that decision. Unlike the Court’s decision this week not to hear a case that originated in Pennsylvania, which Trump only after it lost, disavowed. Not one Justice publicly dissented in that case.

But if they do dissent, it won’t necessarily be a sign of support for Trump, even though he’ll obviously take it and promote it that way. Because as University of Texas law professor Steve Vladek points out, Justices Alito and Thomas, both believe as a matter of law, the Supreme Court must hear all state vs. state disputes brought in this way, otherwise states would have nowhere else to go. That hasn’t stopped the Supreme Court from repeatedly denying such cases in the past, but most times with the dissent of those Justices. Justice Thomas writing in February of this year: “Although I have applied this Court’s precedents in the past…I have since come to question those decisions”.

The only thing that would immediately be really bad is pretty obvious, and exactly what Texas and Trump are seeking for now: an injunction from the court that would block the Electoral College from meeting next Monday as scheduled and voting on the next President. Because the Court doesn’t usually do things like that even when it chooses to hear a case if the Justices don’t think there’s a reasonable or even likely chance the people bringing the complaint can win.

Lots of reporters and legal scholars are calling the Texas move a “Hail Mary.” That’s not helpful. Anyone who watches football knows “Hail Marys” are successful with some regularity. About 1 out of every 10 tries. We think the odds of Trump prevailing are far longer than that. Though nothing’s ever for absolute sure in court until after it happens.

But heck, if we thought there’s a 1 in 10 chance Trump’d finally back off if he loses this one, we’d be willing to put money on that eventuality. Although we’d also be willing to put money on that he won’t. And if his loses this one, has even more tortuous loyalty tests planned.