Right-wing media are celebrating the novel lawsuit from Texas Attorney General Ken Paxton — now supported by President Donald Trump as well as other Republican state attorneys general across the country — actually suing four swing states carried by President-elect Joe Biden and asking the Supreme Court to throw out their vote results over changes that had been made to mail-in ballot procedures.
The suit, if it had any realistic possibility of succeeding (which it likely does not) could be the last gasp of the Trump campaign’s specific plan, aided by right-wing media spreading false claims about mass voter fraud, to throw out the results in key swing states through an obscure maneuver by which new slates of Electoral College delegates would be selected not by the voters, but by the Republican-controlled legislatures in those states.
University of California law professor Rick Hasen describes the suit as “a press release masquerading as a lawsuit” and “utter garbage. Dangerous garbage, but garbage.” University of Texas law professor Steve Vladeck calls it “mostly a stunt — a dangerous, offensive, and wasteful one, but a stunt nonetheless.”
For example, Paxton’s official Supreme Court filing claims that administrative changes to mail-in voting laws, arrived at through court rulings or executive decisions, caused a constitutional harm because “in Defendant States, Democrat voters voted by mail at two to three times the rate of Republicans.” (Polling this year indicated that Democratic-leaning voters had become more interested in the option of voting by mail, as a result of the coronavirus pandemic — while polls also showed that Democrats were more likely to take COVID-19 seriously than were Republicans.)
While the Supreme Court has “original jurisdiction” to immediately take suits between two states rather than having to work through lower courts and an appeals process, the court typically would only take up historical cases involving boundary disputes, or even modern cases over water rights. Such examples involve areas of material contention between the states involved for which the Supreme Court would be the logical place to have the questions resolved. But matters of one state objecting to the policies and political outcomes in another state — such as one state claiming that it is damaged by another state’s election result — do not make the cut. (And the Supreme Court just rejected without any comment another Republican lawsuit, which sought to throw out all the mail-in votes in Pennsylvania.)
And another key point: Paxton is currently under FBI investigation, The Associated Press has detailed, after members of his own staff raised alarms that he was allegedly “using his office to help a wealthy donor with a troubled real estate empire who also hired a woman with whom the married Paxton allegedly had an affair.” As a result, some are speculating that Paxton is really playing to “an audience of one” — that is, to Trump himself — and that he might be angling for a preemptive presidential pardon.
For his part, Paxton told the local NBC affiliate in Austin that he’s had “no discussions” about a pardon. But as it is, he’s got an avid new following among right-wing media hosts who have brought him on to hype his attempt at overturning the 2020 election result.
Fox News’ “straight news” and opinion programs promote Paxton’s suit
Paxton rolled out the lawsuit on Tuesday night’s edition of Hannity — which might seem like an odd choice for any serious legal action that might determine the course of the republic — receiving voluminous praise from the Fox prime-time star. Even just while introducing Paxton, host Sean Hannity declared, “Every decent Republican attorney general with a brain needs to get busy working on their amicus briefs to support this Texas suit.”
Paxton also appeared Wednesday morning on Fox & Friends, though co-host Brian Kilmeade had to ask about the skepticism of the lawsuit that has been voiced by law professor and Fox News contributor Jonathan Turley — a previous defender of Trump’s during the impeachment saga a year ago — who predicted that the suit will not succeed.Kilmeade continued Fox’s hyping of the lawsuit, however, hosting an interview Thursday morning with two other Republican attorneys general who have put their states on board with it — Alabama’s Steve Marshall and Louisiana’s Jeff Landry.
Later in Thursday’s program, co-host Ainsley Earhardt laid out the possibility of flipping the entire result of the election through this lawsuit. “This means if those four states, if they drop those mail-in ballots because they say it was unconstitutional, that's 62 electoral votes. That could shift, that could change the results of this election,” Earhardt said, later adding: “People have to have confidence in the election. Almost 90%, according to Gallup, 90% of Republicans have serious concerns about the process.”
Paxton also appeared Thursday morning with Fox Business anchor Maria Bartiromo, laying out the Republican plan for courts to throw out the popular votes in entire states and put the election into the state legislatures (which happen to be Republican-controlled). Paxton also made it quite clear that the prospect of additional Democratic electoral victories, such as in the upcoming Senate runoffs in Georgia, were the sort of “harm” that he was trying to stop.
Bartiromo in turn responded by declaring that Paxton’s effort was the kind of cause for which U.S. military personnel had fought and died — which might seem like an odd way to characterize the overturning of domestic elections.
Paxton then appeared Thursday night with Fox News anchor Shannon Bream, who asked him, “I want to give you a chance to answer one accusation in particular,” citing a post from right-wing blogger Erick Erickson saying that Paxton was under investigation and just looking for a pardon.
“So, Erick has no idea what he's talking about,” Paxton responded. “I’ve been working on these issues for the last year. We’ve been in — we had 12 lawsuits in Texas that dealt with mail-in ballots, that dealt with the voter certification, that dealt with all types of election issues, and this is just one more. So, this is ridiculous for Erick to make that accusation, he has no idea what he’s talking about.”
Paxton covers the rest of the right-wing media circuit
Paxton appeared Wednesday with Newsmax host Grant Stinchfield, who hailed the “blockbuster suit” and told the attorney general, “You’re really the last hope for all of us that have seen this election as a fraud.”
The network also hosted Trump lawyer Jordan Sekulow, who described the Texas suit as the “be-all, end-all case” for the president’s reelection efforts. But in a negative sign for Paxton, the infamously wrong Dick Morris commented on the rising right-wing network that the Texas lawsuit was “absolutely brilliant.”
Paxton also appeared on the other emerging right-wing outlet, One America News Network, where achor Patrick Hussion said Paxton was “being lionized for stepping up” with his “game-changer” of a lawsuit, and chief White House correspondent Chanel Rion introduced him as “the attorney general of the hour.”
Paxton also appeared Thursday with BlazeTV and YouTube host Steven Crowder, for an interview lasting nearly 20 minutes. At the closing, the host asked about how to get other Republicans to “grow a backbone like you seem to be, General Paxton,” and then exhorted his fans to “petition your A.G.s — tell them to grow a pair.”
Paxton’s other right-wing media fans
Other right-wing media outlets have not necessarily had the opportunity to interview Paxton, but they’re still cheering him on from the sidelines.
Writing at Breitbart earlier this week, Trump ally and former Kansas Secretary of State Kris Kobach called the lawsuit “far more important than all of the others” in this election, and that the argument against the other states was “a matter of basic fairness.”
The Federalist published an explainer piece on the suit containing such questionable statements as: “Texas Is Not Seeking to Overturn the Election—Or Install Trump. … No, what Texas seeks is for the Supreme Court to mandate that the defendant states comply with the Constitution, and that means that electors are selected by the states’ legislatures.”
Rush Limbaugh has also been talking up the case: “And if the court does hear this case, if they actually hear it, I don’t know what they’re gonna do. I don’t know what choice they have. There are so many violations of state election law here. I mean, some of this stuff you can’t ignore, I wouldn’t think.”
And talk radio host Mark Levin, who also hosts at both Fox News and BlazeTV, is hoping that the Supreme Court “finally steps up” in this case, adding that the other Republican state attorneys general now supporting the suit might “finally wake up the Supreme Court.” (Levin previously lambasted the Supreme Court this week after it rejected the Republican lawsuit to throw out all the mail-in votes in Pennsylvania.)
But not everyone
To be clear, though, not all Trump supporters are on board with the Texas lawsuit.
Erick Erickson, in addition to his comment about Paxton looking for a pardon, had this to say: “I personally think my company should pay me workers compensation for brain damage for having to read that lawsuit and related filings. It really is one of the stupidest bits of performative leg humping we have seen in the last five years. These attorneys general are willing to beclown themselves and their states all to get in good with the losing presidential candidate.”
National Review writer and Fox News contributor Andy McCarthy — who had previously exhibited a tremendous degree of political hypocrisy during the Trump impeachment — now calls this suit “a political document that has no prospect of being taken seriously as a set of legal claims.”
“If Texas’s theory is right, then every state now has standing to sue every other state over the latter’s administration of its own laws in connection with its own citizens if it can articulate some collateral consequence that may affect the allegedly injured state in some way,” McCarthy wrote. “I have a hard time believing that the ‘Don’t Mess with Texas’ State will want to live in the world that its attorney general proposes to create.”
And another prominent Trump defender, Alan Dershowitz, appeared on Newsmax Tuesday and said Paxton’s suit would “almost certainly not” result in the election being undone, further commenting: “A+ for creativity, but whether or not it will work in the end is very doubtful.”