In the suit filed late Monday in the name of the State of Texas, its attorney general Ken Paxton argues that Pennsylvania, Michigan, Wisconsin and Georgia violated the Constitution's Elections Clause with their dramatic expansion of mail-in ballots amid the coronavirus pandemic.
Paxton is himself under FBI investigation over allegations of bribery and abuse of his office. It is unclear if he and Trump had coordinated on the move but Trump tweeted that it showed 'courage and brilliance.'
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By targeting the four swing states, Paxton's lawsuit aims to either get their Republican-majority state representatives to appoint electors to the Electoral College, flipping its majority to Trump, or invalidate their electors entirely, reducing Biden's electoral college majority under 270 and handing the decision on the presidency to the House of Representatives.
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Paxton alleges that the four states acted against their own constitutions to make voting easier in the pandemic, and that this hurt the voters of Texas by violating the federal constitution's equal protection clause.
'Whether well-intentioned or not, these unconstitutional acts had the same uniform effect—they made the 2020 election less secure in the Defendant States,' according to the suit.
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'Those changes are inconsistent with relevant state laws and were made by non-legislative entities, without any consent by the state legislatures. The acts of these officials thus directly violated the Constitution.'
Trump retweeted demands that other Republican states join the suit and a list of when their state attorneys generals' terms are up - implying that they should face primaries if they fail to join in.
The suit claims that the four states should be ordered by the justices to pass the power of picking the Electoral College electors back to the legislatures, under Article 1 of the Constitution.
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The Constitution's Elections Clause in Article 1 notes that the 'Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof' – establishing each state's role in running its elections.
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This is the reasoning behind why some states allowed for universal mail-in voting years ago and some took a different course.
The suit claims the four swing states 'flooded their citizenry with tens of millions of ballot applications and ballots in derogation of statutory controls as to how they are lawfully received, evaluated, and counted.'
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The suit requests that the Supreme Court delay the December 14 meeting of the Electoral College to allow for investigations. It accused the states of 'rampant lawlessness' and trying to 'usurp' powers from their legislatures.
The suit seeks to remand the appointment of electors to the states' legislatures – which are all Republican-run – for appointment by the legislators rather than the popular vote that occurred.
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