Tuesday, December 8 was a minor procedural date on the 2020 presidential election calendar but also a notable symbolic one: The safe harbor deadline. At that time, which by law occurs six days before the members of the Electoral College gather to cast their votes for the president and vice president, the slates of electors from each state are locked in place. This year, every state but Wisconsin certified its electoral results by the deadline, all but guaranteeing President-elect Joe Biden’s victory.
The Constitution and federal laws haven’t stopped Republican dead-enders from trying to overturn the election results so far, however, so it’s no surprise that today’s deadline also failed to deter these increasingly quixotic efforts. The latest Trump-aligned attempt to nullify the 2020 presidential election came on Tuesday from the Lone Star State itself, where Texas Attorney General Ken Paxton asked the Supreme Court to directly overturn the results in four key states won by Biden in November.
“Trust in the integrity of our election processes is sacrosanct and binds our citizenry and the States in this Union together,” Paxton said in a statement. “Georgia, Michigan, Pennsylvania and Wisconsin destroyed that trust and compromised the security and integrity of the 2020 election. The states violated statutes enacted by their duly elected legislatures, thereby violating the Constitution.” The unorthodox lawsuit bypasses state courts and lower federal courts, instead arguing that the court must invoke its jurisdiction in lawsuits between two or more states to hear the case directly.
These latest efforts to reverse Biden’s victory are as unlikely to succeed as the more than three-dozen Trump-aligned lawsuits that came before them. There is still no lawful threat to the outcome of the presidential election that should be taken seriously. But it would be a mistake to call this litigation campaign a waste of time. If nothing else, it has exposed just how many Republican politicians and conservative activists view democracy and the right to vote as conditional at best and an obstacle to the ideological framework they’d prefer to foist upon the country at worst.
The substance of the Texas lawsuit is familiar to anyone who’s heard about Trumpworld’s postelection lawsuits. It melds allegations that state officials ignored state election law to illegally expand ballot access with unpersuasive accounts of voter fraud from Trump campaign observers. State and federal judges across the country, including multiple Trump appointees, have repeatedly and consistently rejected lawsuits that claimed widespread election fraud for failing to prove it had happened. They have also uniformly rejected Trump-aligned efforts to reverse the election results by judicial fiat.
What sets the Texas lawsuit apart is its unusual posture. Other litigation efforts have sprung from the Trump campaign, from state Republican parties, and a coalition of voters and conservative activists. This is the first lawsuit of its kind this cycle—and perhaps in any American election—where one state tries to overturn another state’s election results. Texas argues that voter fraud in one state’s presidential election results would dilute the democratic weight of its own electoral votes and that only the justices can solve the problem.
By suing the other four states directly, Texas circumvents the lower courts entirely and thus avoids a key stumbling block for other lawsuits that try to undermine the election results. In a handful of circumstances, the parties in a lawsuit can have their case heard by the Supreme Court if the justices choose to exercise their “original jurisdiction” to hear it. As far as exercises in nihilism go, Texas deserves some points for creativity. But the Supreme Court usually hears only one or two original-jurisdiction cases each year, and most of the justices have shown no appetite for hearing more of them. Opening the door to a wave of cases from states challenging other states’ election laws might be a hard sell at a court that already appears frustrated with how it handles election-related cases in general.
In terms of evidence, the state of Texas rehashed a variety of flawed claims about election processes in the four states. But some of its other claims boggle the mind. “The probability of former Vice President Biden winning the popular vote in the four Defendant States—Georgia, Michigan, Pennsylvania, and Wisconsin—independently given President Trump’s early lead in those States as of 3 a.m. on November 4, 2020, is less than one in a quadrillion, or 1 in 1,000,000,000,000,000,” the state claimed in one of its filings. “For former Vice President Biden to win these four States collectively, the odds of that event happening decrease to less than one in a quadrillion to the fourth power.”
How did Texas reach those figures? The state cited a sworn declaration by Charles Cicchetti, an economist in California, who used “z-scores” to compare Hillary Clinton’s election results in 2016 and those of Biden in 2020. His analysis hinges on the idea that roughly equal numbers of people voted in those two elections and that it’s improbable that votes counted later would be more likely to go to Biden. This reasoning does not survive contact with even a basic familiarity with the given circumstances of the 2020 election. Americans also turned out in greater absolute and relative numbers for this presidential election than any other in the last century. Late-counted votes tilted for Biden in part because Trump actively discouraged his supporters from voting by mail. It’s embarrassing that an economist would draft this analysis, and it’s shameful that a state attorney general would submit it to the Supreme Court of the United States as evidence of anything.
Shamelessness appears to be the defining quality that binds the Republican Party together these days, however. Most GOP officials have carefully avoided stating the reality of Biden’s victory, either because they hope to undermine it or because they fear Trump’s wrath if they admit the truth. Only 25 Republican lawmakers would acknowledge that Biden is the president-elect when asked by The Washington Post last week. Beyond Capitol Hill, things are even worse. The Arizona Republican Party, which has broken ranks with state GOP leaders over the election’s legitimacy, recently asked supporters on Twitter if they would be “willing to die” to overturn the election results.
The Arizona GOP isn’t an outlier when it comes to implicit threats of violence, unfortunately. Perhaps the most notable example came last month from Michael Flynn, a retired general who briefly served as Trump’s first national security adviser. Flynn favorably shared a press release on Twitter on December 1 by a group that called for Trump to impose “limited martial law” so that the military can conduct a second presidential election, presumably on terms that would be more favorable to Trump. It’s unsurprising that Flynn, who pleaded guilty to lying to the FBI about his contacts with foreign governments in 2017, appears to hold so little loyalty for the American constitutional order and for democracy itself. But it’s no less jarring for a retired general to argue forcefully for what would amount to a coup.
This isn’t an entirely new approach to democracy in Trump’s orbit. In a September interview with Infowars’ Alex Jones, longtime ally Roger Stone said that Trump should take extreme preemptive steps to ensure his victory in the November elections, which included the seizure of absentee ballots in Nevada; the nationalization of state police forces; armed voter intimidation at polling places in key states; and the arrests of Hillary and Bill Clinton, former Nevada Senator Harry Reid, Facebook’s Mark Zuckerberg, Apple’s Tim Cook, and “anybody else who can be proven to be involved in illegal activity.” Ironically, everything that Stone demanded would be illegal itself. Stone himself is no stranger to illegal activity: Trump commuted his conviction for lying to Congress about the Russia investigation in July.
Top Republicans haven’t distanced themselves from Trumpworld’s efforts to overturn the election. Indeed, more often than not, they have tacitly embraced those efforts. Consider the case of Texas Senator Ted Cruz, who fought Trump for months over the GOP nomination in 2016 and then pointedly declined to endorse him at that year’s convention. After four years of Trump in power, Cruz is now among his most supportive allies in the Senate. Earlier this month, he even offered to argue his claims before the Supreme Court if the justices heard a lawsuit brought by Pennsylvania Republicans who asked the court to overturn the results in their state.
“Because of the importance of the legal issues presented, I’ve publicly urged #SCOTUS to hear the case brought by Congressman Mike Kelly, congressional candidate Sean Parnell & state rep. candidate Wanda Logan challenging the constitutionality of the POTUS election results in PA,” Texas Senator Ted Cruz wrote on Twitter on Monday. “Petitioners’ legal team has asked me whether I would be willing to argue the case before #SCOTUS, if the Court grants certiorari. I have agreed, and told them that, if the Court takes the appeal, I will stand ready to present the oral argument.” The Supreme Court declined to intervene in a brief, unsigned order on Tuesday evening with no recorded dissents.
The good news for American democracy is that Trump is only half-heartedly trying to overturn the results of the election himself. Though he’s tried to press state lawmakers to appoint rival slates of electors, those entreaties have failed at every turn. Most of his personal attention appears to be focused on a last-minute slate of pardons for his friends and family. His campaign, for its part, is more interested in using claims of election fraud to raise money than actually presenting viable claims of election fraud to the courts. The Washington Post reported last week that Trump’s campaign had sent 498 fundraising emails to supporters since polls closed on November 3, fueling a $495 million haul since mid-October.
“It’s all a shameless con job,” Michael Cohen, Trump’s former lawyer, claimed in a New York magazine interview last week. “He sees his claims of fraud as driving up donations—there’s nothing behind it beyond greed. Trump is using the moment to raise money. The number is actually shockingly large, over $150 million, a majority of it from small-dollar donations. This money is not going to his Election Defense Fund; it’s to keep him relevant in the GOP and launch his media brand. It’s all about money and power, and you need one to get the other.”
But the long-term damage in the American democratic process is already done. As I noted last week, Trump’s conspiracy theories about the election will be used by Republican lawmakers to restrict access to the ballot box even further. If past is prologue, there will be almost no professional consequences for any of the Republican officials or conservative activists who tried to overturn a presidential election. There always seems to be a wealthy conservative donor out there who will bankroll a think tank or legal organization that can provide sinecures to those who’ve fought and failed for the right.
It’s probably more comforting to imagine that the many people who have signed on to this electoral suicide mission have done so because there’s a quick buck to be made than the alternative explanation—that there exists a critical mass of luminaries inside the modern GOP who would undo our democracy with whatever radical means they could lay to hand. Either way, a lot of masks are slipping, and the Lost Cause rolls on.