The post-election pile-up in the Supreme Court docket continued Thursday as Republican lawmakers from Pennsylvania called on the highest bench to throw out their own state’s election procedures—a seeming reversal on earlier commitments to leave President Donald Trump’s 81,000-vote defeat in the Keystone State untouched.
Two days after embattled Texas Attorney General Ken Paxton sued Pennsylvania, Michigan, Georgia, and Wisconsin to throw out their election results, top GOP officials in the Pennsylvania House of Representatives filed their own brief seeming to take the Lone Star State’s side. The friend-of-the-court brief Speaker Bryan Cutler and Majority Leader Kerry Benninghoff filed echoes to Paxton’s argument that, through their decisions and directives on the regulations governing rules on absentee ballots and vote-counting, Pennsylvania Secretary of the Commonwealth Kathy Boockvar and the state’s Supreme Court encroached on the legislature’s exclusive constitutional right to set election laws.
“The executive branch shrank from its obligations to defend the Commonwealth’s laws, and then took to offering extrajudicial guidance to the Commonwealth’s county boards of elections,” the friend-of-the-court brief reads. “Finally, these efforts were condoned and furthered by the overreaching of Pennsylvania’s Supreme Court, in clear violation of the requirements of the U.S. Constitution.”
In a separate filing, two dozen Republican Pennsylvania state senators, including Majority Leader Jake Corman, made an identical argument, though they officially declared themselves in support of neither their own state nor Texas.
“This Court should affirm the grant of authority to state legislatures under the U.S. Constitution’s Elections Clause and disclaim state supreme courts and executive branch officials, from usurping that authority for themselves,” their attorney wrote.
Corman had previously rejected President Donald Trump’s request that the legislature work to overturn his loss.
Now, he joins Trump, a litany of GOP attorneys general, activists, and members of Congress who have urged the justices to act on Texas’s request. Meanwhile, Pennsylvania and Michigan—joined by scores of other blue states and a group of Never Trump Republican attorneys—encouraged the Supreme Court not to take up the case at all, asserting that Texas lacks standing to bring the case and that disputes over election law fall solely within the jurisdiction of state courts.
“The Constitution and Congress have enabled each state to provide law and to adjudicate in its courts all controversies about the presidential election in that state,” wrote former Acting Attorney General Stuart Gerson, former Missouri Sen. John Danforth, former New Jersey Gov. Christine Todd Whitman, forme Gov. Lowell Weicker—all veteran Republican officials—in their brief against Texas. “This court should reject plaintiff’s request to transfer the powers of 50 state court systems to this court.”
Amid the partisan jostling, Republican Ohio Attorney General Dave Yost tried to have it both ways, arguing the Supreme Court should take up the case to put to bed the doubts about election integrity President Donald Trump has sowed. But he argued that the justices should ultimately find against Texas.
“The people need an answer, too. Until they get one, elections will continue to be plagued by doubts regarding whether the president was chosen in the constitutionally prescribed manner,” Yost wrote. “The relief that Texas seeks would undermine a foundational premise of our federalist system: the idea that the states are sovereigns, free to govern themselves.”