In late November, Pennsylvania Supreme Court:
“At the time this action was filed on Nov. 21, 2020, millions of Pennsylvania voters had already expressed their will in both the June 2020 primary election and the November 2020 general election,” the court said. “Petitioners failed to act with due diligence in presenting the instant claim. Equally clear is the substantial prejudice arising from petitioners’ failure to institute promptly a facial challenge to the mail-in voting statutory scheme, as such inaction would result in the disenfranchisement of millions of Pennsylvania voters.”
November, the federal appeals court in Philadelphia:
“Free, fair elections are the lifeblood of our democracy,” wrote Judge Stephanos Bibas, who was appointed to the court by Mr. Trump. “Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here.”
“Voters, not lawyers, choose the president,” Judge Bibas wrote. “Ballots, not briefs, decide elections.”
December 4, Justice Brian Hagedorn of the Wisconsin Supreme Court:
“Judicial acquiescence to such entreaties built on so flimsy a foundation would do indelible damage to every future election,” he wrote. “This is a dangerous path we are being asked to tread.”
December 8, US Supreme Court:
“The application for injunctive relief presented to Justice Alito and by him referred to the Court is denied.”
December 8, Arizona Supreme Court:
unanimously rejected a challenge to the vote in that state, saying it had failed “to present any evidence of ‘misconduct,’ ‘illegal votes’ or that the Biden electors ‘did not in fact receive the highest number of votes for office,’ let alone establish any degree of fraud or a sufficient error rate that would undermine the certainty of the election results.”
December 8, Trump:
"Let's see whether or not somebody has the courage — whether it's legislatures or a justice of the Supreme Court or a number of justices of the Supreme Court — let's see if they have the courage to do what everybody in this country knows is right. If somebody has the courage, I know who the next administration will be."
Chris Cuomo’s response: “To paraphrase Inigo Montoya, a character from one of the greatest movies ever, The Princess Bride: 'Courage. You keep on using that word. I do not think it means what you think it means.’"
December 9
The new centerpiece in the effort is a lawsuit that the state of Texas filed this week with the Supreme Court and that Trump supports. It claims that the election in four swing states — Georgia, Michigan, Pennsylvania and Wisconsin — suffered from “unconstitutional irregularities.” Attorneys general of 17 states — including Florida, South Carolina, Tennessee, Indiana, Utah, Arizona and the Dakotas — have backed the Texas lawsuit and more than half of House Republicans released a legal brief supporting it.
In a Supreme Court filing, Pennsylvania called the Texas lawsuit part of a “cacophony of bogus claims,” a “seditious abuse of the judicial process” and “an affront to principles of constitutional democracy.”
“The court should not abide this seditious abuse of the judicial process, and should send a clear and unmistakable signal that such abuse must never be replicated,” a brief for Pennsylvania said.
“Let us be clear,” the brief continued. “Texas invites this court to overthrow the votes of the American people and choose the next president of the United States. That Faustian invitation must be firmly rejected.”
“This election cycle,” he wrote, “Georgia did what the Constitution empowered it to do: it implemented processes for the election, administered the election in the face of logistical challenges brought on by Covid-19, and confirmed and certified the election results — again and again and again. Yet Texas has sued Georgia anyway.”
“Texas proposes an extraordinary intrusion into Wisconsin’s and the other defendant states’ elections, a task that the Constitution leaves to each state,” Wisconsin’s brief said. “Wisconsin has conducted its election and its voters have chosen a winning candidate for their state. Texas’s bid to nullify that choice is devoid of a legal foundation or a factual basis.”
“If Texas’s theory of injury were accepted,” Wisconsin’s brief said, “it would be too easy to reframe virtually any election or voting rights dispute as implicating injuries to a states and thereby invoke this court’s original jurisdiction. New York or California could sue Texas or Alabama in this court over their felon-disenfranchisement policies. Garden-variety election disputes would soon come to the court in droves.”
The briefs added that Texas had waited too long in any event.
“Disenfranchising millions of voters after Pennsylvania has already certified its election results would grievously undermine the public’s trust in the electoral system, contravene democratic principle and reward Texas for its inexcusable delay and procedural gamesmanship,” Pennsylvania’s brief said.
“While Texas waited to see the results, millions of voters relied on the settled rules,” the brief said. “Those voters should not be punished for not choosing Texas’s preferred candidate, and Texas should not be rewarded for its unreasonable delay in bringing this action.”
The states also urged the justices to reject what they said was the radical remedy sought by Texas: the disenfranchisement of tens of millions of voters.
“In support of such a request,” Pennsylvania’s brief said, “Texas brings to the court only discredited allegations and conspiracy theories that have no basis in fact. And Texas asks this court to contort its original jurisdiction jurisprudence in an election where millions of people cast ballots under truly extraordinary circumstances, sometimes risking their very health and safety to do so.”
Last year, in ruling that the federal courts may not hear challenges to partisan gerrymandering, the Supreme Court said federal judges should not adjudicate political disputes. “Federal judges have no license to reallocate political power between the two major political parties, with no plausible grant of authority in the Constitution and no legal standards to limit and direct their decisions,” Chief Justice John G. Roberts Jr. wrote for the majority.
Pennsylvania quoted that decision at the conclusion of its brief. “Accepting Texas’s view,” the brief said, “would do violence to the Constitution and the framers’ vision, and would plunge this court into ‘one of the most intensely partisan aspects of American political life.’”
Wisconsin warned that even a decision to hear the case could undermine faith in democracy.
“Texas asserts that this court’s intervention is necessary to ensure faith in the election,” the brief said. “But it is hard to imagine what could possibly undermine faith in democracy more than this court permitting one state to enlist the court in its attempt to overturn the election results in other states.”
“Merely hearing this case — regardless of the outcome — would generate confusion, lend legitimacy to claims judges across the country have found meritless, and amplify the uncertainty and distrust these false claims have generated,” the brief said.
