GOP divided by pro-Trump Texas election suit

Senior Republican lawmakers are expressing serious misgivings about a lawsuit the Republican attorney general of Texas is leading against the election results in four swing states, reflecting deep divisions in the party over the legal strategy. 

Even as more than 100 House Republicans on Thursday signed an amicus brief in support of the Texas lawsuit aimed at overturning the election results in four swing states, Sen. John Cornyn (R-Texas) said he was puzzled by the legal theory behind the challenge.

Cornyn, a former Texas Supreme Court justice, said it’s inappropriate for states to interfere in the laws of other states.

“I do not understand the legal theory. I don’t want other states having a chance to change Texas law based on a similar effort. If you can do it for the election, you can do it if somebody wanted to challenge, for example, Texas law on the Second Amendment,” he said.

Senate Republican Whip John Thune (R-S.D.) said Thursday he agrees with Cornyn’s concerns.

“I just don’t know why a state like Texas which never wants anybody telling them what to do, now wants to tell a bunch of other states how to run their elections. I doubt the Supreme Court will take it up,” he said. 

House Minority Leader Kevin McCarthy (Calif.), the top-ranking Republican in the lower chamber, declined to comment about the lawsuit when asked about it multiple times Thursday.

He and Conference Chairwoman Liz Cheney (Wyo.), the third-ranking House Republican, did not sign the amicus brief, but Minority Whip Steve Scalise (La.), the second-ranking GOP lawmaker in the House, and Rep. Jim Jordan (Ohio), the top Republican on the Judiciary Committee, did attach their names.

Cornyn, a member of the Judiciary Committee, said he’s worried the case being brought by Texas and backed by President Trump plus 18 other GOP state attorneys general could open the door to unintended consequences

“I’m not sure where that theory leads,” he said, raising the possibility of states raising future legal challenges against a variety of other states’ laws.

Cornyn said states should maintain sovereignty over their own election laws.

“If people do have constitutional challenges, the place to make those are in their respective states,” he said. “Obviously the ones that have been made have not proven effective, leading to this novel approach.”

Cornyn predicted the Supreme Court won’t agree with Texas attorney general’s arguments.  

That view is shared by a number of election law experts who have panned the lawsuit as far-fetched and unserious, and having little chance of succeeding in its quest to change the election result.

Rick Hasen, a law professor at the University of California, Irvine, said that among other major defects, the legal challenge hinges on Texas’s authority to litigate how other states conduct their elections — a power the state lacks, according to Hasen.   

He added in a post on the Election Law Blog that the remedy Texas is seeking would require the unconstitutional disenfranchisement of tens of millions of voters.

“This is a press release masquerading as a lawsuit,” Hasen said.

Sen. Ben Sasse (R-Neb.), another member of the Judiciary Committee, also predicted the Supreme Court would dismiss the case. 

“I’m not a lawyer, but I suspect the Supreme Court swats this away. From the brief, it looks like a fella begging for a pardon filed a PR stunt rather than a lawsuit — as all of its assertions have already been rejected by federal courts and Texas’ own solicitor general isn’t signing on,” Sasse said in a statement. 

Texas Attorney General Ken Paxton, who is leading the legal challenge, has serious personal legal troubles, leading to speculation that he’s trying to ingratiate himself with Trump in hopes of securing a presidential pardon. Paxton is under an FBI investigation for misuse of office to help a wealthy donor. 

Paxton told a Texas NBC affiliate that he has not discussed a possible pardon with Trump. 

“I’ve had no discussions with anything about … anything like that,” he said, according to KXAN in Austin. 

Seventeen other states with Republican attorneys general are backing Texas in the suit: Alabama, Arkansas, Florida, Indiana, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Utah and West Virginia. 

Cornyn wasn’t the only Texas Republican breaking with Paxton.

Texas Rep. Kay Granger (R) also raised concern about Paxton’s legal effort Thursday.

“I’m not supporting it,” she told a reporter for CNN. “I’m just concerned with the process.” 

Rep. Chip Roy (R-Texas) tweeted “I believe the case itself represents a dangerous violation of federalism & sets a precedent to have one state asking federal courts to police the voting procedures of another state.” 

Pennsylvania’s attorney general, in a fiery response brief Thursday, called Texas’s bid to invalidate election results a “seditious abuse of the judicial process.” He urged the justices to “send a clear and unmistakable signal that such abuse must never be replicated.”

“Since Election Day, State and Federal courts throughout the country have been flooded with frivolous lawsuits aimed at disenfranchising large swaths of voters and undermining the legitimacy of the election,” state Attorney General Josh Shapiro (D) wrote. “The State of Texas has now added its voice to the cacophony of bogus claims.” 

Later on Thursday the three other states named as defendants in the suit — Wisconsin, Michigan and Georgia — submitted their responses, and 22 states plus Washington, D.C., submitted a friend of the court brief backing their effort.

Republican lawmakers are divided, however. Several of Trump’s most outspoken allies on Capitol Hill said they support the legal effort.

This support is widely being seen as reflecting the power Trump has over the party, and is raising questions over whether that power will extend to his time out of office.

The briefs from Republican state attorneys general supporting Texas’s petition came in several different submissions to the Supreme Court. Missouri on Wednesday filed a brief that was joined by 16 other attorneys general, and Arizona filed separate court papers.

On Thursday, a half-dozen state attorneys general, led by Missouri, filed another motion asking the justices for permission to join alongside Texas as parties. That brief was joined by the top cops of Arkansas, Louisiana, Mississippi, South Carolina and Utah.

The New York Times reported that Trump asked Sen. Ted Cruz (R-Texas) Tuesday night if he would be willing to present oral arguments on behalf of Texas and other states to the Supreme Court and Cruz agreed. Cruz served as solicitor general of Texas from 2003 to 2008. 

Texas solicitor general Kyle Hawkins, who usually argues for the state in front of the Supreme Court, is not participating in the suit. 

Sen. Josh Hawley (R-Mo.), who is eyeing a bid for president in 2024, said Thursday that the Supreme Court is required to take up the suit because it’s a direct dispute between states. 

“What I’d like to see the court do is adhere to its constitutional role. In this case they are constitutionally required to hear this case and adjudicate it,” he added. “It’s between states. So when you have a suit between states, only the Supreme Court can hear it.” 

“It arises under what’s called their mandatory jurisdiction, their original jurisdiction under the Constitution,” he said. 

Sen. Mike Braun (R-Ind.) said the suit is the last serious legal challenge to the 2020 election results.

“It’s probably the last salvo that will be out there before [Dec. 14] when the Electoral College meets,” he said. 

Braun said allegations of voter fraud need to be fully vetted.

“Until that’s done, either pre- or post-Dec. 14 you’re going to have a lot of disgruntlement out there and I don’t think that’s a healthy way to go forward,” he said.

He said various state election results are “all interrelated when you’re voting for president” and that a state’s results are impacted by whether another state follows its own election rules.

“The logic of what underpins this lawsuit I think has probably got some credibility to it and that would be for the Supreme Court to see if there is that connectivity,” he said. 

Christina Marcos contributed.