- The Washington Times - Tuesday, December 8, 2020

President Trump called on Supreme Court justices Tuesday to have the “courage” to intervene in the election, as his Republican allies in Texas sued four swing states at the high court in what legal analysts described as a “Hail Mary” effort to block several states from casting electoral votes for presumptive President-elect Joseph R. Biden.

But the Supreme Court rejected another case Tuesday in which Pennsylvania Republicans sought to overturn the state’s certification of the election for Mr. Biden. That case, as with the Texas lawsuit, claimed that Pennsylvania’s legislature did not legally enact the law to expand mail-in voting during the COVID-19 pandemic.

And the Arizona Supreme Court dealt the president another blow late Tuesday, rejecting a lawsuit from the state’s GOP chairwoman alleging election fraud in the state’s largest county.

With his legal options in state courts narrowing and Mr. Biden’s inauguration fast approaching, the president and his supporters increasingly are eyeing Republican-majority state legislatures and the high court for the equivalent of a constitutional miracle to deliver a second term to Mr. Trump.

“Hopefully, the next administration will be the Trump administration, because you can’t steal hundreds of thousands of votes,” the president said at the White House. “Let’s see whether or not somebody has the courage, whether it’s a legislator or legislatures, or whether it’s a justice of the Supreme Court or a number of justices of the Supreme Court. Let’s see if they have the courage to do what everybody in this country knows is right.”



Mr. Trump also retweeted a photo of Supreme Court Justice Amy Coney Barrett, the latest of his three appointees, with beams of light emerging from her eyes.

But the Supreme Court justices rejected a petition Tuesday from Rep. Mike Kelly, Pennsylvania Republican, who filed a pro-Trump lawsuit challenging his state’s mail-in ballots. The court rejected that case without comment.

Mr. Kelly asked the justices to order all mail-in ballots thrown out and to reverse the state’s official certification of election results. It was the first petition to reach the high court seeking to delay or overturn the results of the presidential election.

The Republicans pleaded for the Supreme Court to get involved hours after Texas Attorney General Ken Paxton, a Republican, sued Georgia, Michigan, Pennsylvania and Wisconsin at the high court for holding a “flawed” election. Mr. Biden won all four states, which certified their results before Tuesday’s “safe harbor” deadline for resolving election disputes.

The Texas lawsuit argues that the four swing states, which have a combined 62 electoral votes, violated the Constitution by expanding mail-in balloting without the approval of their elected legislators. Mr. Paxton asked the Supreme Court to order the states to choose presidential electors in their legislatures, all of which are controlled by Republicans.

“By ignoring both state and federal law, these states have not only tainted the integrity of their own citizens’ vote, but of Texas and every other state that held lawful elections,” the complaint stated. “Their failure to abide by the rule of law casts a dark shadow of doubt over the outcome of the entire election.”

The lawsuit further highlighted how Mr. Trump’s postelection campaign is dividing the Republican Party. About half of the Republicans in Georgia’s state Senate applauded the Texas lawsuit and urged the Supreme Court to hear the “very important” case, but the office of Georgia Attorney General Chris Carr, a Republican, called the lawsuit “constitutionally, legally and factually wrong.”

The president’s allies across the country were exerting pressure on other Republican state attorneys general to support Mr. Paxton’s lawsuit.

Americans for Limited Government President Rick Manning said other states must join in the case “for the sake of not only this election, but all future elections.”

Michigan Attorney General Dana Nessel, a Democrat, called the lawsuit “a publicity stunt, not a serious legal pleading.”

“The erosion of confidence in our democratic system isn’t attributable to the good people of Michigan, Wisconsin, Georgia or Pennsylvania, but rather to partisan officials like Mr. Paxton who place loyalty to a person over loyalty to their country,” Ms. Nessel added.

Pennsylvania Attorney General Josh Shapiro, also a Democrat, said, “These continued attacks on our fair and free election system are beyond meritless, beyond reckless.”

Many legal analysts said the Texas lawsuit was a long shot at best.

University of Iowa law school professor Derek Muller, a specialist in election law, said the last time such a case was brought directly to the high court was in 1966, when Delaware challenged New York’s “winner-take-all method of awarding electors.”

But the Supreme Court rejected the case without comment, he said.

Ilya Shapiro, publisher of the Cato Institute’s Supreme Court Review, said Texas’ lawsuit wasn’t “as bad as” some of the other election challenges that have been filed, but he still said it was “frivolous.”

“Even the state’s theory of standing is dubious. Note that the Texas solicitor general, whose job it is to represent the state before the Supreme Court, didn’t sign the filing. Paxton had to hire a ‘special counsel,’” Mr. Shapiro said.

Josh Blackman, a professor at South Texas College of Law, said the case was perplexing and likely had no chance of success.

The president, whose legal team has been rejected in nearly every election challenge in six states, insisted again that he won reelection. He blamed Democrats for stealing the election through coordinated fraud with mail-in ballots and irregularities in tabulating the votes.

Mr. Trump listed his administration’s achievements and concluded, “We were rewarded with a victory.”

“You can’t have fraud and deception and all of the things that [Democrats] did,” Mr. Trump said. “I received almost 75 million votes, the highest number of votes in the history of our country for a sitting president. … All you have to do is turn on your local television set and you’ll see what happened with thousands of ballots coming out from under tables. … And if somebody has the courage, I know who the next administration will be.”

Electoral College members are to meet in each state capital Monday to formally cast their votes for president. Mr. Biden has 306 electoral votes to Mr. Trump’s 232. A candidate needs at least 270 to win the presidency.

Despite the deadline next week that should seal Mr. Biden’s victory, the president’s attorneys said Tuesday that they will fight on through at least Jan. 6, the date of “ultimate significance” in a presidential election. That is when Congress meets to approve each state’s slate of presidential electors.

The president and his supporters are urging congressional Republicans to challenge Mr. Biden’s electoral votes in the House and Senate next month.

Trump attorneys Rudolph W. Giuliani and Jenna Ellis, both of whom have tested positive for COVID-19, also said the “only fixed day in the U.S. Constitution is the inauguration of the president on January 20 at noon.” Their statement suggested that their legal challenges could continue until the moment Mr. Biden presumably will say “so help me God” with his hand on a Bible.

Attorney General William Barr last week said the Justice Department has found no evidence of voting fraud on a scale that would have changed the election’s outcome.

The justices are scheduled to meet for a closed-door conference Friday and could issue orders related to election challenges this week. But most court watchers are skeptical that the high court would want to weigh in on the contested election.

Other lawsuits are still working their way through courts.

The Arizona Supreme Court rejected a complaint Tuesday from state Republican Party Chair Kelli Ward, who has challenged absentee ballots in Maricopa County. The court said a trial judge had not abused his discretion in disallowing the inspection of more ballots.

Sidney Powell, a pro-Trump lawyer, has taken her case alleging wrongdoing with voting machines used in Georgia to a federal appeals court. She filed the appeal after a federal district court judge dismissed the case Monday. Another judge dismissed her Michigan lawsuit on Monday involving similar allegations.

But Ms. Powell also has claims still pending before district court judges in Arizona and Wisconsin.

The Arizona judge heard oral arguments against state officials Tuesday morning concerning Dominion Voting Systems’ machines. She said she will decide whether to dismiss the case by Wednesday afternoon “at the very latest.”

The lawsuits claim Dominion Voting Systems’ machines connected to the internet, which violates election security laws.

The Arizona lawsuit challenges more than 412,000 votes in the battleground state, which certified its results last month. Mr. Biden defeated Mr. Trump in Arizona by 10,457 votes, or 0.3 percentage points.

Judge Diane J. Humetewa, an Obama appointee, noted during Tuesday’s hearing that the state’s election results already had been certified.

Julia Haller, who argued the case on behalf of those contesting the election, said Bush v. Gore, the 2000 case challenging Florida’s results, was considered by the high court justices after the state certified the result as a Bush victory.

“The U.S. Supreme Court did not say it is too late,” Ms. Haller said.

She said the issue presented is not partisan because the House passed a voting rights and election integrity bill last year that said “voting machines should not be connected to the internet.”

“This is an election integrity issue,” she told the judge.

Justin Nelson, the lawyer representing Arizona officials, said the lawsuit consisted of “conspiracy allegations” and the court should dismiss the “frivolous” case.

Judge Timothy C. Batten, a Bush appointee, dismissed a similar lawsuit against Georgia officials Monday, as did Judge Linda V. Parker, an Obama appointee who heard the Michigan case alleging the same voter fraud involving Dominion.

A spokesperson for Dominion Voting Systems has repeatedly denied any wrongdoing in the election and dismissed accusations of manipulated votes as conspiracies.

Ms. Powell plans to take the cases all the way to the Supreme Court and has appealed the Georgia dismissal to the 11th U.S. Circuit Court of Appeals.

• Dave Boyer can be reached at dboyer@washingtontimes.com.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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