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Texas v. Pennsylvania Lawsuit


On Dec. 8, 2020, Texas Attorney General Ken Paxton (R) filed a lawsuit known as Texas v. Pennsylvania with the U.S. Supreme Court. It sought to block Georgia, Michigan, Pennsylvania, and Wisconsin from certifying their results of the 2020 presidential election because of what it charged were unconstitutional changes to election procedures made to accommodate voters during the pandemic. Paxton filed the case directly with the Supreme Court under the doctrine of original jurisdiction, which gives the high court the exclusive right to hear cases between states. 

The core of Paxton’s argument was that executive branch officials in each of the four states—all of which Biden won—used the Covid-19 pandemic as a pretext to “usurp” the authority of their legislatures and change election procedures in violation of the Electors Clause in Article II, Section 1, clauses 2 and 3 of the U.S. Constitution. The argument is based on the “independent state legislature theory” advocated by Trump ally John Eastman, a law professor at Chapman University and a member of the Federalist Society

Trump had great expectations for the case, filing a motion to intervene that was written by Eastman, and calling it “the big one” on social media.

The lawsuit was backed by 17 far-right Republican attorneys general in red states who signed an amicus brief in support of Texas. A group of 126 Republican congressmen also signed an amicus brief in support of Texas. As a countermeasure, the District of Columbia and 22 other states and territories filed their own amicus brief supporting the defendants. 

On Dec. 11, 2020—three days after the initial filing—the Supreme Court dismissed the case due to lack of standing. The justices wrote that “Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections. All other pending motions are dismissed as moot.”

The Big Lie

  • Paxton’s brief argued that changes made by state election officials—particularly those that allowed for the submission of additional absentee ballots—created the opportunity for election fraud and undermined procedural safeguards against malfeasance. 
  • The amicus brief filed by 126 Republican members of Congress argued that the election results in the four states in question should be overturned because of suspicions of election fraud and essentially because so many people believed the rumors, lies, and manufactured misinformation that they and other members of the far Right had pushed on social media. The “election of 2020 has been riddled with an unprecedented number of serious allegations of fraud and irregularities,” the brief states, adding that “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.”
  • The amicus brief signed by 17 Republican attorneys general claimed that the defendant states were “stripping away safeguards” against voter fraud created by state legislatures. They also argued that “not only is the risk of voter fraud real but it could affect the outcome of a close election.”
  • The day the suit was filed, legal scholar Noah Feldman called Texas v. Pennsylvania part of a coup attempt by Trump and his allies rather than a serious legal case. “The Texas lawsuit is literally asking the court to disqualify the electors from the four swing states that went to Biden,” he wrote. “That would plunge the country into a constitutional crisis. It would be the end of democracy in the United States.”