12.10.2020 0

Why the Texas election lawsuit is different

We’re fighting for the Constitution because the Constitution requires fair and honest elections.

By Catherine Mortensen

With more than 100 different election fraud lawsuits filed since the November 3 election and allegations of international conspiracies involving multiple companies, banks, and countries, it can be confusing. But the Texas legal challenge stands out because it would undo the state electoral college certifications and toss the presidential race to the House of Representatives.

To help make sense of it all, Americans for Limited Government (ALG) took our questions to one of the nation’s most respected legal scholars,  Kim Hermann of the  Southeastern Legal Foundation, a Georgia-based public interest law firm that advocates limited government, individual economic freedom, and the free enterprise.


What we know:

  • Eighteen states have joined Texas in its lawsuit that seeks to halt presidential electors in four battleground states from casting their votes for President-elect Joe Biden.
  • Texas Attorney General Ken Paxton(R) filed the lawsuit before the Supreme Court on Tuesday against Michigan, Georgia, Wisconsin and Pennsylvania — all states Biden won.
  • Paxton argues that electors from those states should not cast their votes because the states unconstitutionally changed their voting processes to allow for mail-in voting.
  • The attorneys general of seventeen states that President Trumpwon filed an amicus brief on Wednesday. Those states are: Missouri, Alabama, Arkansas, Florida, Indiana, Kansas, Louisiana, Mississippi, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Utah and West Virginia.
  • Arizona Attorney General Mark Brnovich (R) filed a separate briefin support of the case.
  • President Trump has asked to intervene in the case, which means if the Supreme Court takes the case, and they allow him to intervene, he will become a party in the case.
  • 62 electoral votes are at stake in MI, GA, WI, and PA.

ALG: What make the Texas lawsuit different?

Hermann: It pulls together the fact that a number of states did not follow their state law. This case is not about fraud or Covid. It is not about the ballots or changing of ballots. This case is about the disregard for statutory procedure. It’s about elected officials disregarding the law.

Take Georgia, for example, the state legislature passes laws pursuant to the Constitution about how the election should be run. It requires the secretary of state to do A, B, C, and D. What this lawsuit does, is point out that maybe step B wasn’t always done. Or maybe A, B, and C were done but D wasn’t done.

The lawsuit simply states, elected officials need to follow the law and if they don’t like what the law says or they don’t like the procedure then they should work to get it changed the right way. But they cannot change it unilaterally.

ALG: But Covid does factor into the lawsuit, right?

Hermann: I think these states used the Covid as an excuse to change the rules. That doesn’t mean the rules were changed after Covid and that is also a really important point about this lawsuit. A number of these states changed the rules before Covid. But they are pointing to Covid as the excuse because they can. I think it’s going to be really important that the courts and the public pay close attention to the timing of when these changes occurred –  in many cases, they were in the works for a long time. A number of states disregarded the law the entire time.

ALG: How soon can we expect to hear from the Court and what action might the Court take?

Hermann: Texas has asked for an expedited briefing and I would not be surprised if the court gets back with a response within a week to 10 days. The court could stop the electoral college from formally voting on Dec. 14.

ALG: You say this isn’t just about Donald Trump or who wins this election, why?

Hermann:  The 2020 election has got to stand alone as a one-off. Elected executive branch officials should never be allowed to unilaterally change state election laws because of a pandemic, a health reason, any reason. If they want to do that, they have to do it through their state legislatures, they can’t disregard the law.

At the end of the day, we’re fighting for the integrity of our election. We’re fighting for the Constitution because the Constitution requires fair and honest elections. The elected officials in these and quite possibly other states disregarded the law and they are putting the Constitution and the very foundation of our country in jeopardy.

ALG: Thank you, Kim. I think it is important that every American who wants free and fair elections in the future contact their state lawmakers and demand a full, honest election audit. 

To take action, go to ElectionAuditNow.org.

Catherine Mortensen is Vice President of Americans for Limited Government.

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