Texas Senate race: Paxton’s lawsuit challenging 2020 could have led to ‘the end of democracy’ 

Since he became the GOP nominee for Texas’ U.S. Senate race Tuesday night, Democrats have pilloried Attorney General Ken Paxton over the charges of securities fraud and corruption that in 2023 led his fellow Republicans in the Texas House to impeach him.

But another episode that has gotten less attention in the race raises even more fundamental concerns, suggesting that Paxton poses a clear and present threat to fair elections: His leading role in an outrageous legal effort on behalf of President Donald Trump to undo the results of the 2020 presidential contest.

The lawsuit was drafted by Trump campaign’s lawyers, and Paxton agreed to bring it — over some of his own staff’s objections — after Louisiana Attorney General Jeff Landry, now the state’s governor, first refused.

In the suit, Paxton didn’t just challenge the results or allege fraud — courts had already dismissed lawsuits filed by the Trump campaign and his allies to that effect, finding no evidence whatsoever to support the crackpot conspiracy theories they peddled. 

Instead, he questioned the constitutionality of the election itself, saying that steps taken to ensure voters could safely cast ballots during the ongoing COVID pandemic were legally invalid. And while nearly every state adopted emergency electoral procedures in 2020, Paxton only challenged them in four swing states that had voted for Joe Biden: Pennsylvania, Georgia, Michigan and Wisconsin.

The lawsuit was not merely “the legal equivalent of a Hail Mary,” as one conservative observer charitably described it. Rather, as Harvard Law’s Noah Feldman wrote, Paxton was asking the Supreme Court to “engage in a constitutional coup d’état and give Trump a second term,” resulting in “the end of democracy in the United States.”

Even many conservatives opposed the lawsuit. Rep. Chip Roy (R-Texas), a leader of the far-right House Freedom Caucus and the future author of the SAVE America Act, called the suit “a dangerous violation of federalism [that] sets a precedent to have one state asking federal courts to police the voting procedures of other states.” Georgia’s Republican attorney general called it “constitutionally, legally and factually wrong.” Mitt Romney, then a GOP senator from Utah, said it was “simply madness.” 

Time was running out for Trump when his campaign approached Paxton. 

In the weeks following the election, the campaign’s lawyers had tried different arguments to justify throwing out Democratic votes in courtrooms across the nation, to no avail. So, they coalesced around one last-ditch theory: The Covid-inspired electoral rule changes in Pennsylvania, Georgia, Michigan and Wisconsin were so suspect that all of the more than 20 million ballots cast there were invalid. Therefore, the court should let those state legislatures — which, it just so happened, were all controlled by Republicans — send replacement Electoral College slates of their choosing. 

Litigating the issue up through district and appellate courts would take too long — the electoral vote count was only days away. The campaign decided to go directly to the U.S. Supreme Court, where Republican appointees outnumbered Democratic picks six to three, including three nominated by Trump himself. And so, Trump needed someone like Paxton, because only a state attorney general could file a lawsuit under the Court’s original jurisdiction.

According to the New York Times, some of the president’s own election lawyers doubted any attorney general would be willing, and indeed the initial feedback the group received was dubious, at best, of the legal theory. But Paxton soon agreed to lead the effort, and, despite the considerable political baggage related to the Texan’s ongoing corruption investigations, the Trump campaign went with him. 

Texas v. Pennsylvania ran counter to the GOP’s long-held beliefs about states’ rights and federalism, and against conservative disdain for judicial activism. Filed on Dec. 8, 2020, the lawsuit asked the Supreme Court to issue emergency injunctions to keep the four states’ presidential electors from joining the Electoral College to formally vote on Dec. 14. Paxton argued that the measures state election officials took — pursuant to standing and emergency authorities granted by the state legislatures — to help voters cast votes during the pandemic were “unconstitutional acts.” 

Paxton pushed the independent state legislature theory, an extremely narrow reading of the Constitution’s Electors Clause and Elections Clause, which both empower the “Legislature” of each state with running elections. Under Paxton’s theory, the state legislature — and it alone — would need to explicitly authorize any change to election procedures. As a result, changes made by executive officials and judges were invalid. 

Once it was filed, 126 Republican House members joined an amicus filed by Rep. Mike Johnson (R-La.). Another 17 Republican state attorneys general offered their own amici, one circulated by Missouri’s solicitor general, D. John Sauer. Texas’ other Senator, Ted Cruz (R), agreed to argue the case at oral argument, if the court scheduled one. 

But on Dec. 11, 2020, the Supreme Court declined to hear the case, ruling Texas had no standing to challenge votes in other states. (The Court would reject independent state legislature theory in a separate case three years later).

Today, thanks in part to what they did back then in fealty to Trump, Johnson is Speaker of the House, Sauer is U.S. Solicitor General, and Cruz is reportedly on Trump’s Supreme Court shortlist.

And Paxton, who faces a high-profile showdown this fall with state Rep. James Talarico (D), could be Texas’ next senator.