The Fundamental Flaw in Paxton’s Quixotic Lawsuit Against Michigan, Georgia, Pennsylvania and Wisconsin

Embattled Texas AG Ken Paxton has filed a lawsuit on behalf of Texas in the U.S. Supreme Court asking the Court to undo the results of the election in four other states. The case is brought in the Supreme Court because that is the forum for a state v. state action. Paxton claims that changes in voting procedure in these states must have been approved by the state legislatures under the “Electors Clause” of Art. II of the Constitution. That reads:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Nuber of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress[.]

There is a lot of heavy lifting involved to stretch this clause to require that every voting procedure be approved by a state Legislature. But putting that aside, the fundamental problem with Paxton’s argument is fairly obvious. Paxton argues that only a state Legislature can change election procedure and that in these states, officials at various levels of government made changes without legislative approval. For example, Paxton argues that Pennsylvania’s Secretary of State relaxed requirements for signature verification on mail ballots.

Assuming that this and the other allegations are true, here is the problem. Paxton also argues that under Supreme Court precedent the authority to choose electors is conferred upon the state legislatures by the Constitution, and that power cannot be taken from them or modified by their state constitutions. “Whatever provisions may be made by statue, or by the state constitution, to chose electors by the people, there is no doubt of the right of the legislature to resume the power at any time, for it can neither be taken away or abdicated.”

So according to Paxton, under the Constitution the power to chose electors (and regulate elections to chose electors) is solely in the hands of the state legislatures. As such, the Supreme Court (and any other court for that matter) has no power to tell any state legislature when or when not to exercise that power and what restrictions there are on that power. That may be a scary proposition as a state legislature could possibly decide the electors and ignore the actual vote of its citizens – but that is the logical conclusion of Paxton’s argument – and Trump is apparently trying to get several state lawmakers to do just that. The Constitution leaves it solely up to the state legislature and there is no restriction on that power. If a state legislature wants to sit back and let election procedures be changed, a court has no power to require them to do anything about it. Thus, if Texas wants Pennsylvania to overturn the election it has to convince the Pennsylvania legislature to do so. It cannot go to the Supreme Court and have it decide that the Pennsylvania legislature must act.

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