Texas v. Pennsylvania: The House Republicans Who Backed the Lawsuit

Originally published 2020-12-13.

In December 2020, 106 Republican members of the US House of Representatives signed a legal brief supporting Texas v. Pennsylvania, a lawsuit that asked the Supreme Court to block the certified presidential election results of Georgia, Michigan, Pennsylvania and Wisconsin, four states Joe Biden had won. By the time the Court ruled, the number of signers had grown to 126. On 11 December 2020 the justices refused to hear the case, saying Texas had no legal standing to challenge how other states run their elections.

The episode is remembered as one of the most striking attempts to overturn the 2020 result through the courts. Here is what the lawsuit asked for, who supported it, what the Supreme Court decided, and why legal experts across the political spectrum saw it as doomed from the start.

What the Texas lawsuit asked for

Texas Attorney General Ken Paxton filed the suit directly with the Supreme Court on 8 December 2020. The Constitution lets the Court hear disputes between states as their first stop, without passing through lower courts, so Paxton argued Texas could sue the four states as an injured party.

His claim was that the defendant states had changed voting procedures during the pandemic, for example by expanding mail-in voting, without proper approval from their legislatures, and that this violated the Constitution and harmed voters in states that followed their own rules. In his announcement Paxton said those states had "destroyed that trust and compromised the security and integrity of the 2020 election."

The remedy he sought was extraordinary: the Court was asked to stop the four states from using their certified results before the Electoral College met on 14 December, and to let their legislatures choose electors instead. Together the four states held 62 electoral votes, enough to change the outcome.

Who backed the lawsuit

Support came quickly. On 9 December President Donald Trump asked to join the case as a plaintiff in his personal capacity and publicly called it "the big one." Republican attorneys general from 17 other states filed a brief in support.

In the House, Representative Mike Johnson of Louisiana organised an amicus brief, a filing by people who are not parties to a case but want to offer arguments to the court. It initially carried 106 names; 20 more members joined before the ruling, bringing the total to 126, well over half of House Republicans at the time. Johnson later became Speaker of the House in October 2023.

Jake Tapper goes off on the 106 House Republicans who signed on to Texas' Trump-backed attempt to overturn the election:

"It’s absolutely undemocratic. It is seditious... they’re going to be forever associated with this crap, with this insane, un-American, undemocratic lawsuit!" pic.twitter.com/U5jFU0WUNN

— Justin Baragona (@justinbaragona) December 10, 2020

The move drew sharp criticism from commentators, as the CNN clip above shows, and from some Republicans who declined to sign. Their concern was that asking a court to discard millions of votes on the request of another state would set a dangerous precedent, whichever party benefited.

The other side: Pennsylvania and 20 more states

The four defendant states, joined by 20 other states, two US territories and the District of Columbia, urged the Court to reject the suit. Pennsylvania's filing, submitted by the office of Attorney General Josh Shapiro, called it a "seditious abuse of the judicial process" and argued that Texas was asking the Court to pick the next president.

The defendants also pointed out that the election claims had already been tested. By then Trump's campaign and allies had filed dozens of lawsuits in state and federal courts, and nearly all had been dismissed or withdrawn for lack of evidence. State officials from both parties, along with the federal agency responsible for election security, had said there was no evidence of fraud on a scale that could have changed the result. Biden won the national popular vote by about seven million votes and the Electoral College by 306 to 232.

The Supreme Court's decision

On the evening of 11 December 2020, just three days after the filing, the Court issued a short unsigned order denying Texas permission to file its complaint. The reason was standing: Texas had not shown a legally recognisable interest in how another state conducts its elections. All other motions in the case, including Trump's request to intervene, were dismissed as moot.

Justices Samuel Alito and Clarence Thomas wrote briefly that they believe the Court must accept filings in disputes between states, but even they said they would not have granted any of the relief Texas wanted. In practice, no justice supported blocking the results, including the three appointed by Trump.

Three days later, on 14 December, the Electoral College met and confirmed Biden's victory. He was inaugurated as the 46th president on 20 January 2021.

Why legal experts expected the suit to fail

Standing

Courts only hear cases from parties who can show a concrete injury that the court can fix. Texas voters had chosen Texas's electors; it was hard to explain how the way Pennsylvania counted its ballots legally harmed the state of Texas.

Timing

The rule changes Texas complained about had been made months before the election. Courts are generally unwilling to hear challenges filed after votes are cast if the complaint could have been raised beforehand.

Federalism

The US system leaves the running of elections to each state. A ruling that one state could police another's elections would have opened the door to endless interstate lawsuits after every close contest.

What happened next

The lawsuit's failure did not end efforts to reverse the result, which culminated in the attack on the US Capitol on 6 January 2021, the day Congress met to count the electoral votes. Many of the House members who signed the Texas brief also voted that night to object to the results from Arizona or Pennsylvania.

For anyone trying to understand the 2020 election, the key points are simple. An amicus brief is a statement of support, not a ruling. The Supreme Court did not accept any of the fraud claims, and the certified results stood.

Sources: Wikipedia: Texas v. Pennsylvania; Office of the Texas Attorney General, 8 December 2020: AG Paxton sues battleground states; Supreme Court of the United States, order of 11 December 2020 in No. 155, Orig..