There was a time when Texas was ground zero in the states' resistance against the federal government encroaching on their power and authority. Taking office in January of 2015, Texas Attorney General Ken Paxton has led the charge of the Republican state attorneys general who regularly sued the Obama administration over various executive orders.
It turns out that Paxton was not serious about his commitment to the Constitution and federalism, The minute Republican President Trump entered office, Paxton turned on a dime and began using the power of his office to support Trump executive orders in court, even when those executive orders arguably encroached on state power.
|Texas Attorney General Ken Paxton|
On Tuesday, Paxton took his hypocrisy to new levels, filing an original action in the United States Supreme Court to ask that the Court overturn the popular vote for President in four states - Wisconsin, Michigan, Pennsylvania and Georgia. Paxton's argument is that in those four states, officials administratively made changes to their voting or vote counting procedures that were either in violation of existing state law or would have had to be authorized by a new statute. In short, Paxton is saying that officials in these four states acted outside their authority.
Almost immediately, Indiana Attorney General-Elect Todd Rokita jumped on board, urging that current Attorney General Curtis Hill to join the lawsuit.
Rokita, like Hill, is a Republican. Neither, however, has evr allowed their commitment to the Constitution and the principle of federalism to interfere with their willingness to support everything Donald Trump does in office, regardless of how antithetical to traditional conservative values Trump's actions may be.
It is difficult to see how Texas has standing to maintain the lawsuit. It is even more difficult to see how Paxton can continue to claim to be a conservative when pursuing litigation that could not be more contrary to conservative principles.
Don't get me wrong. While these state elected officials, almost all Democrats, were understandably trying to make changes to deal with the difficulties of conducting an election during a pandemic, I think there is some question as to whether they acted within their administrative authority in adjusting some of the rules. But those issues should have been litigated before the election and by parties directly affected by the changes. The notion that the state of Texas now has standing to challenge voting and vote counting changes in those states is far-fetched to say the least.
In support of the requisite showing of "harm" that supposedly happened as a result of these changes, Texas offers a boatload of anecdotal evidence including such things as the debunked problem with "suitcases of ballots" in Georgia. Texas also alludes to the statistical analysis performed by Charles J. Cicchetti, Ph.D. which suggests that, based on early vote results in Wisconsin, Michigan, Pennsylvania and Georgia, Biden's odds of overtaking Trump in all four states was one in quadrillion.
It's hard to examine Cicchetti's analysis because the details on his calculations do not appear to be published any place. Enough details though have come out to identify the problem with the analysis. First, it should be noted that Cicchetti is not a mathematician. He is an economist. While economists, like political scientists, deal with statistics, obviously, that is not their primary focus.
Basically what Cicchetti appears to have done is assume the odds of votes counted later being Biden votes were the same odds of the earlier counted votes being for Biden. It's most easy to visualize the problem with this analysis by using the coin flip analogy.
Let's say a million in-person votes are counted in a state and it is 50-50. There are a million more votes mail-in votes to be counted. When finished counting, Biden wins the state with 62.5% of vote. To get to 62.5%, Biden would have had to win 75% of the remaining million votes. Using Cicchetti's analysis, that would mean a coin (odds on a coin flip are 50-50), would have landed heads for Biden on 750,000 of the one million flips. The odds of that happening are indeed extremely long.
The problem is the assumption that the odds of something happening in the first batch of ballots were the same as the second batch.. While Republicans and Trump emphasized in person voting, and demonized mail-in voting, Democrats and Biden focused on the latter. Since Wisconsin, Michigan, Pennsylvania and Georgia all counted in person votes first before beginning to count mail-in ballots, it was not surprising that Trump had a sizeable lead in all four states and Biden caught up when the mail-in ballots were counted. That is exactly what every political analyst expected would happen.
It should be noted that Cicchetti did not use his analysis in looking at the Florida vote. Unlike the other four states mentioned, Florida counts mail-in votes first. Biden had a big lead in the Sunshine State in the early-counted vote only to lose it when the in person, day of votes were counted last. By Cicchetti's analysis, Trump winning Florida after being down early, was a shock. Not it wasn't.
Texas offers the Supreme Court three options when it comes to a remedy. First, the Supreme Court could simply disqualify Biden electors who are appointed in Wisconsin, Michigan, Pennsylvania and Georgia, leaving those states without a vote in the electoral college. Second, a special election could be held in the four states to elect the electors, i.e. a redo of the November presidential election. Third, the Supreme Court could simply allow the (Republican-dominated) legislatures in those states select the electors for the state.
In the lawsuit, I think I see a problem with Texas' analysis of the effect if SCOTUS chooses the first option. The lawsuit, on page 69, of the Brief, Texas correctly notes that without the 62 electoral votes of Wisconsin, Michigan, Pennsylvania and Georgia, Biden would have 244 electoral votes to Trump's 232. But then Texas concludes, incorrectly that in such a situation, the election would have to be decided by the United States House of Representatives, presumably because no candidate received a majority (270) of the 538 electoral votes.
But the 12th Amendment says the majority is based on a "the whole number of Electors appointed." If the Supreme Court blocks the appointment of electors from those four states, then the number of electors appointed is 474. At 244 electoral votes, Biden would have a majority of electors and be the next President of the United States. Instead, to pull off a Trump victory in the four states, Texas needs a new election or the legislatures of those states to pick the electors instead of the voters.