Republican elected officials across the country filed multiple briefs with the U.S. Supreme Court on Thursday in support of Texas Attorney General Ken Paxton’s freewheeling lawsuit against Pennsylvania, Georgia, Michigan and Wisconsin which seeks to overturn the results of the 2020 election in each state–thereby keeping President Donald Trump in the White House.
The sheer number of briefs filed invites the following metaphor and implication: Republicans are climbing over one another to sign onto the Lone Star State’s bid to disregard the will of the voters in four swing states Trump lost.
Citing allegations of fraud and corruption and Alexander Hamilton’s words in The Federalist Papers concerning “the threat posed by foreign governments to influence the selection” of the U.S. president, 106 GOP members of the U.S. House of Representatives filed in support of Texas, telling the nine justices that it is their “solemn duty” to “provide an objective review of these anomalies and to determine for the people if indeed the Constitution has been followed and the rule of law maintained.”
To hear over half the current GOP conference in the House tell it, state legislatures have “plenary authority” to “establish the manner by which electors are appointed, and determine the constitutional validity of any ballots cast under rules and procedures established by actors or public bodies other than state legislatures.”
On the other hand, the majority of the lower-chamber’s GOP contends, the state legislatures in Pennsylvania, Georgia, Michigan and Wisconsin were each, somehow, “usurped at various times by governors, secretaries of state, election officials, state courts, federal courts, and private parties.”
The brief continues with great pathos in this vein:
Due in large part to those usurpations, the election of 2020 has been riddled with an unprecedented number of serious allegations of fraud and irregularities. National polls indicate a large percentage of Americans now have serious doubts about not just the outcome of the presidential contest, but also the future reliability of our election system itself.
In other words, those 106 Republican members of Congress believe that state legislatures are granted, under the U.S. Constitution and the vision of the Framers, the power to “appoint” Electoral College slates. Their brief explicitly argues the “one constraint” on this alleged power is that Congress itself chooses Election Day.
And, since the election has already passed, various fraud and corruption-themed disputes raised by Republicans mean that those state legislatures in each of the pivotal states won by Joe Biden would be within their constitutional prerogative to ignore what happened on Election Day, the brief argues.
“Our constitutional republic has endured for nearly two and a half centuries based on the consent of the governed,” the congressional GOP concludes without a touch of intentional irony. “That consent is grounded in the confidence of our people in the legitimacy of our institutions of government. Among our most fundamental institutions is the system of free and fair elections that we rely upon, and any erosion in that foundation jeopardizes the stability of our republic.”
The heart of the GOP’s complaint, if one were forced to find some sort of a legal bearing, is that elected officials in Pennsylvania, Georgia and Michigan (each state’s respective top elections official) issued rules that increased access to mail-in voting for the 2020 general election and that Wisconsin’s state Elections Commission did the same. That’s the entire case.
According to the Republican Party would-be amici, since each state legislature was not directly responsible for increasing vote-by-mail access, the ballots cast under those voting regimes violated Article II of the U.S. Constitution.
Reaction to the official opposition party putting forth such an extreme and constitutionally-unsupported legal theory was widespread and critical.
“Add another 106 names to the list of spineless sycophants supporting a seditious abuse of the judicial process,” said Pennsylvania Attorney General Josh Shapiro (D) via Twitter. “(Say that 3 times fast.)”
Former White House ethics attorney Walter Shaub tweeted out an unintended consequence of the GOP’s own argument: “By their own logic, they’re not members of the House of Representatives.”
A similar sentiment was expressed by Rep. Ilhan Omar (D-Minn.) who also took the GOP to task for their continued attacks on the legitimacy of the 2020 election.
“They are attempting a coup in broad daylight and it should not be treated as anything less,” she said. “If it is about election integrity, why aren’t they questioning the Congressional elections that happened at the same time?”
Indeed, as Law&Crime’s Adam Klasfeld noted:
More than a dozen are from the states where Paxton wants the elections to be toppled. https://t.co/uQwit7qLIv
— Adam Klasfeld (@KlasfeldReports) December 10, 2020
But the MAGA caucus in the House was not the only group of organized Republicans able to afford attorneys willing to put their names on proposed amicus briefs in support of Paxton’s quixotic quest.
Idaho’s Lieutenant Governor Janice McGeachin banded together with other GOP elected officials in the Gem State, Alaska and Arizona to make a constitutional-language-based argument that strains the limits of being worth mentioning at all.
Attorney Mike Dunford briefly dismissed this obvious PR stunt:
We’ve also got an amicus from various state officials in who want SCOTUS to rule that the defendant states violated Article 4 Section 4, which “guarantees…a Republican Form of Government.”
This is not a contender for dumbest argument but is certainly one of the least coherent. pic.twitter.com/419J4ud9Tu
— Mike Dunford (@questauthority) December 10, 2020
Aside from the constitutionally-illiterate claim on which the McGeachin brief is based, the language contained in the filing is redolent of vile and vituperative antisemitic tracts that circulate in some of the worst quarters of society.
“As the facts alleged by the State of Texas demonstrate, the 2020 elections in Pennsylvania, Georgia, Michigan, and Wisconsin represent the antithesis of a republican form of government,” the document reads. “An elite group of sitting Democrat officers in each of the defendant states coordinated with the Democrat party to illegally and unconstitutionally change the rules established by the legislatures in the defendant states, thereby depriving the people of their states a free and fair election—the very basis of a republican form of government.”
The filing goes on to reference “credible allegations of cabal and oligarchy in the four” states in question.
Again the bombastic filing:
When an elite minority are alleged to conspire to impose their will on a majority, as Texas and its allies in this case allege, there is quite frankly no residual trace of a Republic, but only a fraud, a deception of epic proportions which defies the imagination, the pretense of an election where there was only computerized, mechanized manipulation.
The leaders of Pennsylvania’s own state legislature–both of whom are Republicans–also filed a motion taking Texas’s side. Speaker of the Pennsylvania House of Representatives Bryan Cutler and Majority Leader of the House of Representatives Kerry Benninghoff argued in their brief that “outside actors who greatly damaged the Commonwealth’s election integrity procedures” worked to subvert their chambers’ “legislative efforts.”
Their argument is summarized as follows:
This extrajudicial assault on the mechanism of the Commonwealth’s elections came from all sides: well-funded national groups who, using COVID-19 as a pretext, brought a litany of lawsuits challenging seemingly every facet of Pennsylvania’s elections; then the executive branch shrank from its obligations to defend the Commonwealth’s laws, and then took to offering extrajudicial guidance to the Commonwealth’s county boards of elections. Finally, these efforts were condoned and furthered by the overreaching of Pennsylvania’s Supreme Court, in clear violation of the requirements of the U.S. Constitution.
While taking care to “take no position with regard to” Paxton’s proposed remedies (invalidating the 2020 election in Pennsylvania) and couching their would-be contribution as strictly informative, the Cutler-Benninghoff brief effectively endorses the invalidation argument anyway.
“The [State of Texas] and others have raised important questions about how this procedural malfeasance affected the 2020 General Election,” the suggested filing concludes. “Amici hope that this additional background to the events and circumstances that have occurred in the Commonwealth of Pennsylvania which have given rise to this lawsuit will aid the [Supreme] Court in resolving this matter expeditiously.”
Commercial litigator and intellectual property attorney Akiva Cohen offered a representative response to the onslaught of GOP filings.
“Insanity,” he said via Twitter.
[images via ANGELA WEISS and MANDEL NGAN / AFP via Getty Images]
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