AG Mark Herring opposes Texas’ effort to invalidate 2020 election results

On December 10, 2020, Attorney General Mark R. Herring has joined a coalition of 23 attorneys general in urging the Supreme Court to reject the Texas Attorney General’s request that the Court overturn election results in four key states critical to President-Elect Joe Biden’s victory. In an amicus brief filed in Texas v. Pennsylvania, Attorney General Herring and his colleagues argue that Texas’ unprecedented suit depends on a misreading of the Constitution’s Electors Clause – one that clashes with a century of precedent denies states’ power to make their own decisions about election administration and oversight and threatens to upend the basic notions of federalism and states’ rights. Further, Texas’ suit depends on baseless claims of voter fraud, offering no evidence whatsoever of systemic fraud in the November election. Attorney General Herring and his colleagues are asking the Court to throw out Texas’ lawsuit against Georgia, Michigan, Pennsylvania and Wisconsin.

“This anti-democratic, un-American lawsuit has no basis or support in the law, the Constitution, or reality. It attempts to undermine centuries of election precedent, disenfranchise millions of Americans, and circumvent the will of the people in an attempt to overturn an election that did not come out in Donald Trump’s favor,” said Attorney General Herring. “There is absolutely no evidence of any kind of widespread voter fraud in Georgia, Pennsylvania, Michigan or Wisconsin, yet these baseless and fabricated conspiracy theories are now being dragged from the dark corners of the internet into courtrooms in order to undermine the free and fair elections that form the very foundation of our democracy. President Trump has already lost more than 50 times in court in his futile attempts to overturn the election results and my colleagues and I plan to add to that total by helping to defeat this lawsuit.”

According to President Trump’s own Department of Homeland Security, the 2020 election was “the most secure in American history.” President-Elect Biden carried the states of Georgia, Michigan, Pennsylvania, and Wisconsin by decisive margins. Both Wisconsin and Georgia underwent recounts to confirm the results. Wisconsin’s recount revealed President-Elect Biden had won by a slightly larger margin of victory than in the initial count. All three recounts in Georgia have reaffirmed President-elect Biden’s edge. Election officials in all 50 states and the District of Columbia have now certified their results. While President Trump’s campaign has made wild allegations of electoral tampering, neither the campaign nor its supporters have produced any evidence of substantial voter fraud or other forms of wrongdoing. The president and his allies have filed 55 election-related suits since November 3 and judges have rejected their claims in all but one minor case.

Despite this, the Texas attorney general, supported by 17 Republican attorneys general, filed a lawsuit against Georgia, Michigan, Pennsylvania, and Wisconsin in the Supreme Court. The lawsuit alleges that the States unlawfully enacted changes to their election laws under the cover of the COVID-19 pandemic. It asks the Supreme Court to make an unprecedented intervention and invalidate the will of the voters in those four states. Tellingly, it says nothing of other states—including Texas and several other States that supported Texas’s lawsuit—that made similar changes to their election process to guarantee access to the ballot while keeping residents safe during this public health emergency.

Attorney General Herring and his colleagues filed an amicus brief today in vigorous opposition to Texas’s undemocratic effort to overturn the results of the election. Specifically, the states urge the Supreme Court to deny Texas’s lawsuit because:

• Texas’s interpretation of the Electors Clause is contrary to a century’s worth of precedent: The Electors Clause of the Constitution grants the states the power to set their own rules for presidential elections held within their own states. While the text of the Constitution says this authority is given to “state legislatures,” since the early 20th century, the Supreme Court has allowed the legislatures to delegate this authority to elections administrators or other state government entities.

• States have a constitutional right to determine the process for administering their own elections: Federalism is a core component of the Constitution, governing a division of power between the states and the federal government. The Constitution makes clear, and the Court has affirmed, that the Framers granted the States the right to administer and oversee presidential elections on their own. Yet Texas’s lawsuit—calling on the Supreme Court to intervene in the elections held by the four defendant states—would infringe on that right, and thus, their sovereignty. Further, it would set its own destructive precedent limiting the States’ ability to make critical changes to the structure and oversight of elections.

• There is no evidence that the states’ common-sense measures to protect the vote and the health of residents produced significant voter fraud: Since 2000, more than 250 million people in all 50 states have voted using mail-in ballots, and in 2018 alone, more than 31 million Americans—or about 25.8 percent of voters—cast their ballots by mail. Moreover, five states—Colorado, Hawaii, Oregon, Utah, and Washington—already have all-mail voting systems where every registered voter receives a ballot in the mail. Despite the prevalence of voting by mail, officials at the state and federal level have consistently found no evidence of widespread fraud. That remained true for the 2020 election. Despite President Trump’s claims that the results were tainted by voting fraud, his campaign lawyers and other allies have consistently failed to substantiate these assertions with any evidence. Indeed, Republican and Democratic officials overseeing the elections in all four defendant states have repeatedly confirmed that these processes were safe and secure.

Joining Attorney General Herring in filing today’s amicus brief are the attorneys general of California, Colorado, Connecticut, Delaware, Guam, Hawaii, Illinois, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Rhode Island, Vermont, U.S. Virgin Islands, Washington, and the District of Columbia.