President Donald Trump jointe Texas Atty. Gen. Ken Paxton’s lawsuit with 17 other attorneys general in the Supreme Court arguing that Texas was disenfranchised because of irregular voting activity in battleground states. Paxton asks the Supreme Court for injunctive relief to stop battleground states, including Michigan, Wisconsin, Pennsylvania and Georgia from submitting their Electoral College vote totals for completion Dec. 14 in the Electoral College. Paxton contends that battleground states deviated from their own state-mandated election laws under the guise of Covid-19 accommodations. “The Constitutional issue is not whether voters committed fraud but whether state officials violated the laws by systematically loosening the measures for ballot integrity so that fraud becomes undetectable,” said Chapman Constitutional law professor John Eastman, now on leave to Colorado University.
Eastman asks the Supreme Court to invalidate the elections in battleground states because election officials deviated from state procedures for managing mail-in ballots. Eastman argues that it’s impossible to prove fraud because state election officials tinkered with mail-in ballots like completing signature or addresses, when they were missing on the ballots. “The unlawful actions of election officials effectively destroy the evidence by which the fraud may be detected,” Eastman said. Democrats reject out of hand the idea that any kind of election fraud took place, insisting that Biden had more votes recorded than Trump handing him the election. Eastman contends that it’s not necessary for Trump to prove fraud, only to show that election officials deviated from state-mandated procedures when it came to counting mail-in ballots, including filling in signatures and addresses.
Democrats have focused on the lack of fraud to discredit Paxton’s lawsuit, when, as Eastman points out, doesn’t rely on fraud at all, only deviating from state-mandated procedures for handling ballots. “Texas is arguing that coronavirus-related changes to election rules in each state violate the federal Constitution, never mind that most states (including Texas) made such changes this cycle,” said Steve Vladeck, University of Texas law professor. Vladeck called Paxton’s suit a “Hail Mary,” expecting the Supreme Court to do what they did Dec. 6 with the Pennsylvania suit: Toss it out without review. “The litigation is legally incoherent, factually untethered and based on theories of remedy that fundamentally misunderstand the electoral process,” said Univ. of Washington Law professor Lisa Marshall Manheim. Other comments about Paxton’s suit have been equally unflattering.
Not pulling any punches, UC Irvine election law professor Richard Hansen stopped sugarcoating his impression of Paxton’s suit. “This is a press release masquerading as a lawsuit . . . What utter garbage. Dangerous garbage but garbage,” Hansen said, not explaining of what’s wrong with the suit. Eastman’s legal theory suggests that the four battleground states that engaged in ballot collection-and-counting irregularities disenfranchised Texas voters that voted for Trump. Georgia’s Atty. Gen. Chris Carr said Paxton was “constitutionally, legally and factually wrong about Georgia,” meaning that there was no ballot irregularity in the collection-and-counting of Georgia’s ballots. “I frankly struggle to understand the legal theory,” said Texas Sen. John Cornyn, not sure how tampering with ballots in the battleground state affects the vote in Texas, disenfranchising voters.
Eastman made clear that Paxton’s suit doesn’t have to prove fraud, only that battleground state election officials processed mail-in ballots in a manner inconsistent with state election laws. Eastman says Covid-19 cannot be an excuse to deviate from Constitutionally mandated procedures for collecting-and-counting mail-in ballots. Matching signatures and addresses on ballots were essential for validating the ballot. When election officials were ordered to write in signature and addresses to that ballots counted, it put a thumb on the scale, biasing the count for Biden. When Eastman talks about covering up voter fraud, he’s talking about election officials altering ballots so there were counted. Eastman argues that, Covid-19 or not, that procedure ran afoul with state election laws. Writing it signature and addresses is precisely what Eastman refers to as covering up a fraudulent ballot.
Paxton’s suit isn’t likely to get a hearing in the Supreme Court, largely because the High Court doesn’t want to weigh in on invalidating a national presidential election. Debating the ins-and-out of local or state election law, especially how mail-in ballots are handled legally, the Supreme Court isn’t likely to take up Paxton’s suit. “I read the summary of it [Paxton’s lawsuit], and I frankly struggle to understand the legal theory of it,” Cornyn told CNN in Atlanta. “Number one, why would a state, even such a great state as Texas, have a say so on how other states administer their elections? It’s an interesting theory, but I’m not convinced,” Cornyn said. Whether there’s merit in Eastman’s argument or no, the Supreme court isn’t likely to take up a case and disenfranchise millions of state citizens who cast their mail-in votes for Biden and his 56-year-old VP-elect Kamala Harris.
