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Texas Is Trump’s Best Last Chance To Pull Off An Election Challenge

(Mandel Ngan/AFP via Getty Images)

Varun Hukeri General Assignment & Analysis Reporter
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The state of Texas has filed an application to the Supreme Court initiating a lawsuit against Pennsylvania, Michigan, Wisconsin and Georgia — four battleground states President-elect Joe Biden won in November’s presidential election.

Texas v. Pennsylvania et. al. has been docketed by the Supreme Court and alleges that multiple election irregularities took place in violation of state election laws and federal requirements for elections. The lawsuit claims the defendant states used the pandemic as an excuse to change election procedures in violation of the Constitution and federal law.

Republican Texas Attorney General Ken Paxton argued in a separate statement Tuesday that the defendants “flooded” their states with ballots returned by mail or drop boxes while unlawfully loosening signature verification and witness requirements. The lawsuit effectively asks the Supreme Court to block the states from voting in the Electoral College.

US President Donald Trump waves upon arrival, alongside Attorney General of Texas Ken Paxton (L) in Dallas, Texas, on June 11, 2020, where he will host a roundtable with faith leaders and small business owners. (Photo by Nicholas Kamm / AFP) (Photo by NICHOLAS KAMM/AFP via Getty Images)

President Donald Trump waves alongside Texas Attorney General Ken Paxton in Dallas, Texas (Nicholas Kamm/AFP via Getty Images)

“These flaws cumulatively preclude knowing who legitimately won the 2020 election and threaten to cloud all future elections,” according to the lawsuit. (RELATED: Did The Media Steal The Election For Biden? Here’s The Evidence)

The Supreme Court set a deadline of 3:00 p.m. Thursday for the four defendant states to file a response before deciding whether to weigh in on the case.

Four of the nine Supreme Court justices would need to grant a writ of certiorari in order to take up the case. The ideological makeup of the Court skews towards conservatives by a 6-3 margin and three justices — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — were appointed by President Donald Trump.

The lawsuit may be Trump’s final chance to contest the election results. The Trump campaign and Republican allies have already lost or withdrawn 50 election-related lawsuits, according to Forbes. The Supreme Court declined to hear a similar case Tuesday that attempted to reverse Pennsylvania’s certification of its election results.

The president commended the Texas lawsuit and said his campaign will request to join the case. “This is the big one. Our Country needs a victory,” Trump tweeted Tuesday.

Paxton’s fellow attorneys general in the four defendant states slammed the lawsuit and rejected allegations that unlawful election procedures were responsible for Biden’s victory, NBC News reported. (RELATED: The Biden Transition Is In No Danger Letting Trump’s Legal Challenges Play Out. Here’s Why)

“This has become a circus,” Democratic Pennsylvania Attorney General Josh Shapiro tweeted. “The continued attacks on our election are beyond meritless, beyond reckless. It is a scheme by the sitting president & his enablers to disregard the will of the people. It’s not serious & it will not stand.”

“The motion filed by the Texas Attorney General is a publicity stunt, not a serious legal pleading,” Democratic Michigan Attorney General Dana Nessel said in a statement. “Mr. Paxton’s actions are beneath the dignity of the office of Attorney General and the people of the great state of Texas.”

“I feel sorry for Texans that their tax dollars are being wasted on such a genuinely embarrassing lawsuit,” Democratic Wisconsin Attorney General Josh Kaul tweeted. “As we are in various other meritless cases challenging the results of the election, the Wisconsin Department of Justice will defend against this attack on our democracy.”

“With all due respect, the Texas attorney general is constitutionally, legally and factually wrong about Georgia,” said Republican Georgia Attorney General Chris Carr’s spokeswoman Katie Byrd, according to the Atlanta Journal-Constitution.

Article III of the Constitution grants the Supreme Court “original jurisdiction” in cases involving state governments. Federal law also dictates that only the nation’s highest court has the authority to adjudicate legal disputes between cases. But the Court rarely uses this power, according to the Federal Judicial Center, and cases generally deal with smaller issues like water rights.

A legal dispute between states over election results is unprecedented. It is unclear if the Supreme Court would even take up Paxton’s case, given that the Tuesday deadline for states to resolve election disputes and determine their electors has passed.

This rule — commonly referred to as the “safe harbor deadline” — is defined by federal statute and notes that electors must be selected six days before the Electoral College meets to cast their votes. Members are scheduled to vote Dec. 14 this year. (RELATED: The Shortlist Is Already Out For 2024 GOP Presidential Candidates)

But the Trump campaign’s legal team said in a statement Tuesday that election challenges will continue to be pushed through. “It is not unprecedented for election contests to last well beyond December 8,” the legal team said in reference to the 2000 election and subsequent Bush v. Gore decision by the Supreme Court.

WASHINGTON, DC - SEPTEMBER 28: The Guardian or Authority of Law, created by sculptor James Earle Fraser, rests on the side of the U.S. Supreme Court on September 28, 2020 in Washington, DC. This week Seventh U.S. Circuit Court Judge Amy Coney Barrett, U.S. President Donald Trump's nominee to the Supreme Court, will begin meeting with Senators as she seeks to be confirmed before the presidential election. (Photo by Al Drago/Getty Images)

The U.S. Supreme Court building on September 28, 2020 in Washington, DC (Al Drago/Getty Images)

Harvard Law School professor Noah Feldman, however, argued in a Bloomberg editorial Tuesday that relying on Bush v. Gore may not work out for Trump’s legal team. The Court’s decision came down to a handful of votes in Florida in an election where the winner was genuinely unclear. But this is not the case with Paxton’s lawsuit, Feldman noted.

Multiple news outlets declared in early November that Biden won with 306 electoral votes, and legally challenging the results in multiple states would be significantly more complicated than in just one. The president-elect’s margin of victory was also significantly higher in every defendant state than Bush’s narrow 537-vote margin was in Florida during the 2000 election.

Trump’s legal team and Republican allies are likely to continue filing legal challenges contesting the election results. But with all states certifying their results and the Electoral College set to meet in a few days, it is unclear if the Supreme Court can be the campaign’s saving grace.