Two Reasons the Texas Election Case Is Faulty
Two Reasons the Texas Election Case Is Faulty
Ken Paxton, the Texas attorney general, has asked the Supreme Court to do something it has never done before: disenfranchise millions of voters in four states and reverse the results of the presidential election.
The case is highly problematic from a legal perspective and is riddled with procedural and substantive shortcomings, election law experts said.
And for its argument to succeed — an outcome that is highly unlikely, according to legal scholars — a majority of the nine justices would have to overlook a debunked claim that President-elect Joseph R. Biden Jr.’s chances of victory were “less than one in a quadrillion.”
Mr. Paxton is a compromised figure, under indictment in a securities fraud case and facing separate accusations, by several former employees, of abusing his office to aid a political donor.
Here are some reasons this case is probably not “the big one” like President Trump has called it.
The suit’s legal argument is deeply flawed, legal experts said.
Texas appears to have no claim to pursue the case, which would extend Monday’s deadline for certification of presidential electors in Georgia, Michigan, Pennsylvania and Wisconsin. It relies on a novel theory that Texas can dictate how other states run their elections because voting irregularities elsewhere harm the rights of Texans.
The Paxton case fails to establish why Texas has a right to interfere with the process through which other states award their votes in the Electoral College, said Edward B. Foley, a law professor at Ohio State University and director of its election law program. The authority to manage elections falls to the states individually, not in any sort of collective sense that the Paxton suit implies.
“They all do what they do,” Mr. Foley said. “For Texas to try to complain about what Georgia, Pennsylvania and these other states have done would be a lot like Massachusetts complaining about how Texas elects its senators.”
Typically state attorneys general are protective of their rights and wary of Supreme Court intervention, which Mr. Foley said makes this case unusual. “This is just the opposite,” he said. “It would be an unprecedented intrusion into state sovereignty.”
The four states named in the suit denounced it on Thursday and urged the court to reject it. The attorney general of Michigan, Dana Nessel, accused Mr. Paxton and other Trump allies of running “a disinformation campaign baselessly attacking the integrity of our election system.”
The remedy the lawsuit seeks — the disenfranchisement of millions of voters — would be without precedent in the nation’s history.
Even if the suit were proper, it was almost surely filed too late, as the procedures Texas objects to were in place before the election.
A Supreme Court brief opposing Texas’ requests by prominent Republicans, including former Senator John Danforth of Missouri and former Gov. Christine Todd Whitman of New Jersey, said Texas’ filings “make a mockery of federalism and separation of powers.”
“It would violate the most fundamental constitutional principles for this court,” the brief said, “to serve as the trial court for presidential election disputes.”
Mr. Trump and his supporters have often pointed to Bush v. Gore, the Supreme Court case that decided the 2000 election, as a hopeful historical precedent for their side. But unlike Bush v. Gore, there is not an obvious constitutional question at issue.
“It looks like an inherently political suit,” Mr. Foley said.
The suit uses statistical arguments that statisticians called ‘comical.’
Mr. Paxton’s filing repeatedly cites an analysis by an economist in California that statisticians have said is nonsensical. Mr. Biden’s chances of winning the four battleground states in question, the analysis says, were “less than one in a quadrillion.”
The economist, Charles J. Cicchetti, who donated to Mr. Trump’s campaign in 2016, arrived at the minuscule probability by purporting to use the results of the 2016 election as a backstop. His flawed reasoning was this: If Mr. Biden had received the same number of votes as Hillary Clinton did in 2016, he wrote, a victory would have been all but impossible.
But Mr. Biden, of course, did not receive the same number of votes as Mrs. Clinton; he received over 15 million more. Nor would any candidate be expected to receive the same number of votes as a previous candidate.
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That one-in-a-quadrillion figure has echoed across social media and was promoted by the White House press secretary. But an array of experts have said that the figure and Mr. Cicchetti’s analysis are easily refutable.
Stephen Ansolabehere, a professor of government at Harvard University who runs its election data archive, called this analysis “comical.”
The analysis omitted a number of obvious, relevant facts, he said: “the context of the elections are different, that a Covid pandemic is going on, that people reach different conclusions about the administration, that Biden and Clinton are different candidates.”
By the same logic and formula, if Mr. Trump had received an equal number of votes in 2020 as he did in 2016, there is also a one in a quadrillion chance that Mr. Trump in 2020 would outperform his totals in 2016, said Stephen C. Preston, a professor of mathematics at Brooklyn College. “But that doesn’t prove Trump cheated, it just shows that the numbers are different,” he said. “It’s like finding a low probability that 2 equals 3.”
Mr. Cicchetti also wrote that votes counted earlier in the process and votes counted later favored different candidates, and that there was “a one in many more quadrillions chance” that votes counted in the two time periods were coming from the same groups of voters.
But that is exactly what was expected to happen: Democrats tended to prefer voting by mail, and those ballots were counted later in the four battleground states, while Republicans tended to prefer voting in person on Election Day, and those ballots were counted earlier.
“The order and tempo of vote counting was unlike previous elections,” said Amel Ahmed, a professor of political science at the University of Massachusetts Amherst.
What Mr. Cicchetti wrote was not especially revelatory, experts agreed.
“The model is silly,” said Philip Stark, a professor of statistics at the University of California at Berkeley. “This is not science or statistics. It’s not even a good cartoon of elections.”
Texas’ attorney general is caught up in scandal.
Though the legal reasoning of Mr. Paxton’s case may be novel, the impulse behind it is not. It was just the latest example of a Trump loyalist using the power of public office to come to the aid of a president whose base of support remains deeply attached to him and overwhelmingly says the election was unfair, according to polls.
Mr. Paxton, 57, has been under a cloud of scandal since October, when seven of his senior staff attorneys accused their boss of bribery, misuse of his office and other wrongdoing. Their allegations, which Mr. Paxton has denied, involve a wealthy developer and political donor, Nate Paul, whose home and offices were raided by federal agents in August.
The aides accused Mr. Paxton of “potential criminal offenses,” including assisting in Mr. Paul’s defense and intervening in the developer’s efforts to get a favorable judgment in a legal battle between his properties and a nonprofit.
First elected in 2014, Mr. Paxton has served much of his term under a still-unresolved securities fraud indictment stemming from events that took place before he took office. The indictment accuses Mr. Paxton of selling technology shares to investors in 2011 without disclosing that he received 100,000 shares of stock as compensation, and of failing to register with securities regulators.
Mr. Paxton has nevertheless maintained a high national profile — and the affection of conservatives — with his relentless efforts to dismantle policies of the Obama era and shoulder the Trump administration’s causes.