A wild week: Supreme Court tells SC, other Republicans they can’t undo Biden win

It began last Monday with a filing in the U.S. Supreme Court by the Texas Republican attorney general, in which he sought to nullify Joe Biden’s wins in the Nov. 3 election in four crucial battleground states.

In his filing, Texas Attorney General Ken Paxton, a close associate of President Donald Trump, asserted without specific evidence that massive fraud had likely spoiled the combined 62 electoral votes of those four battleground states — Georgia, Michigan, Pennsylvania and Wisconsin — and that their votes for Democrat Biden should not be counted in the nation’s Electoral College.

On Wednesday, Texas’s bid was joined by S.C. Republican Attorney General Alan Wilson, who with 17 other Republican attorneys general filed a friend of the court brief in the Supreme Court, urging it to side with Texas and grant the state a hearing.

Also on Wednesday, Trump himself filed a complaint in the Supreme Court, claiming without evidence that voting in the four battleground states had been illegal and that various historical voting trends proved that he actually won the Nov. 3 votes in those states.

On Thursday, the five South Carolina Republican members of Congress — Rep. Joe Wilson, R-Lexington (Alan Wilson’s father); Rep. Jeff Duncan, R-Laurens; Rep. William Timmons, R-Greenville; Rep. Ralph Norman, R-Rock Hill; and Rep. Tom Rice, R-Myrtle Beach — joined more than 120 other Republicans in filing a brief supporting Texas’s claims and urging a hearing. They claimed without specifics that “the election of 2020 has been riddled with an unprecedented number of serious allegations of fraud and irregularities.”

Opposing the Republican filings were filings in the Supreme Court by the attorneys general for the four battleground states. They asserted their elections had been conducted legally, that Texas was making false allegations and that if the Supreme Court allowed Texas to interfere in their state elections, that would set off a never-ending chain reaction of election lawsuits by losing states against the winners in every future presidential election.

The stakes were high. Should Texas and South Carolina and other Republicans prevail, Texas was asking the Supreme Court to nullify the battleground states’ popular votes and let the Republican-dominated legislatures in those states vote for electors — a ruling that likely would have given those 62 votes to Trump, along with another four years in the presidency.

And on Friday night, the Supreme Court — whose nine mostly conservative members include three associate justices named by Trump — had a two-paragraph answer for the South Carolina and other Trump supporters that boiled down to: No.

The spectacle of South Carolina Republican politicians trying but failing to overturn an American presidential election attracted wide attention in the Palmetto state.

Attorney General Alan Wilson’s Facebook page, for example, had nearly 1,000 comments on the issue: They included “What a shameless stunt, sticking your nose into other states’ business,” and “I am happy to hear our Attorney General is helping Texas. Don’t mess with Texas and don’t mess with SOUTH Carolina.”

Congressman Joe Wilson’s Facebook page contained more than 200 comments ranging from harsh critiques — “Shame on you Joe Wilson, the wish of the American voters have spoken very clearly. This is a travesty and dirty politics,” one comment said — to praise for Rep. Wilson — “Thank you! Election integrity is a must for our country. The overwhelming fraud has to be addressed!” another comment said.

Rep. Duncan of Laurens got 130 comments on his Facebook page. They included “Time to turn in your American flag lapel pin, and be charged with sedition” and “Thank you for all that you are doing. Today’s ruling was a gut punch ... but please continue to stay strong.”

Meanwhile, constitutional law professor Thomas Crocker of the University of South Carolina School of Law told The State newspaper Saturday that the Supreme Court ruled in accordance with longstanding legal principles and did the right thing for the right reasons in the right way.

This was a rare case, Crocker said, “as unprecedented as unprecedented gets. It’s a basic principle of U.S. constitutional law that within their own domains, states get to make their own laws. The Constitution provides that the states get to choose the manner of selecting their electors for president, and that’s the end of it.

“The idea that one state would have the ability to sue another state because it doesn’t like the way the other state is administering their constitutionally delegated authority to choose electors is something that has never happened. South Carolina can’t sue California because South Carolina doesn’t like California’s emissions standards. It’s a baseline principle — one state cannot complain about another state’s way of doing its business.”

The only exceptions are disputes between states involving matters such as boundary differences or river water rights, Crocker said.

As for the allegations of widespread election fraud by Texas and other Republicans, Crocker said those allegations have all been heard in the proper legal courts in the four battleground states and been rejected. That was the proper place to bring the allegations of election irregularities or fraud, he said.

“For Texas to come along and repeat the same claims and seek to have them heard in the Supreme Court is unprecedented — I don’t know what the word is — legally silly. It’s laughable, and it’s scary that an attorney general of a state, including our state, would see merit in such an obviously frivolous action and advance the claims to the highest court in the land — that is the most shocking part of this.”

Asked why the Supreme Court dismissed Texas’s claim without formally agreeing to consider it, Crocker said if the Supreme Court had agreed to hear the case, even to turn it down, that would have given the case the legitimacy it does not deserve.

“When a party brings a baseless, even silly claim like this — which is also dangerous — the best course of action is what the court did: don’t even acknowledge it as worthy of a hearing,” Crocker said. “The court has a deeper principle. It only hears cases that have real controversies.”

Underscoring Crocker’s remarks about the Republicans’ not having legitimate claims of fraud was the fact that Trump’s own Attorney General, William Barr, has told the Associated Press that his Department of Justice, which has FBI agents and prosecutors in every state, had found no evidence of widespread fraud.

Meanwhile, the Republican actions of joining lawsuits in the Supreme Court to overturn Biden’s election provoked a strong reaction from Rep. Jim Clyburn, D-S.C., of Columbia, a Biden supporter who last week on CNN compared Republican actions to a “coup.”

On Friday Clyburn told The State, “It is only in autocratic countries where those votes that are cast against the party in power are determined to be fraudulent. With each passing day I am getting a better understanding of how Hitler took power in Germany.”

Others applauded the Republicans. Drew McKissick, executive director of the S.C. Republican Party, said on the party’s Facebook page, “Attorney General Alan Wilson ... understands just how critical election integrity is to our state and our country, and we’re proud he’s continuing to defend secure elections and protect the rule of law by filing the amicus brief.”

Attorney General Wilson drew criticism elsewhere.

On Friday, The (Charleston) Post and Courier’s editorial page accused Wilson of “undermining the foundations of our Republic. ... We wonder how Mr. Wilson would like it if attorneys general in Democratic-majority states asked the U.S. Supreme Court to throw out South Carolina’s election results.”

Meanwhile, in legal filings in the U.S. Supreme Court, Michigan, Pennsylvania, Wisconsin and Georgia fought back, citing facts and established law:

Here are some excerpts from the Supreme Court filings of battleground states Pennsylvania, Georgia, Wisconsin and Michigan:

▪ Pennsylvania’s Attorney General Josh Shapiro, a Democrat, called the Texas filing “bogus” and a “seditious (conduct bordering on treason) abuse of the judicial process.” The Supreme Court should write a ruling that will “send a clear and unmistakable signal that such abuse must never be replicated,” he wrote.

Texas’s effort to get the Supreme Court to “anoint Texas’s preferred candidate for President is legally indefensible and is an affront to principles of constitutional democracy,” Shapiro wrote.

Texas’s claims also constitute a “surreal alternate reality,” Shapiro wrote, adding if upheld, the Supreme Court would disenfranchise “all Pennsylvanians who voted and one-tenth of the voters in the entire Nation.”

▪ Georgia’s Attorney General Christopher Carr, a Republican, said the Texas filing is an “attack on Georgia’s sovereignty... (that) would trample the ‘historic tradition that all the States enjoy equal sovereignty.’ ” Historically, the Supreme Court only has intervened in disputes between states that involve matters such as boundary fights, water rights or pollution discharged into a neighboring state, Carr wrote.

Georgia has completed three total recounts of the vote for its presidential electors and has settled all election disputes in state courts of law in “multiple lawsuits ... all resolved in Georgia’s favor,” Carr wrote. “Texas nevertheless asks this Court to transfer Georgia’s electoral powers to the federal judiciary.”

▪ Wisconsin’s Attorney General Joshua Kaul, a Democrat, called Texas’s bid to scuttle the election an action “devoid of a legal foundation or a factual basis,” and in any event, he wrote, the Constitution leaves to each state the right to settle its own election disputes.

Kaul added, “Nearly 3.3 million Wisconsin voters cast ballots for the office of President of the United States. ... Those votes have been counted, audited, and many have even been recounted. There has been no indication of any fraud, or anything else that would call into question the reliability of the election results.”

If the Supreme Court agreed with Texas, Kaul wrote, every national election from now on would be subject to challenge and “any state attorney general dissatisfied with another state’s results could sue in this Court, diminishing the legitimacy of this Court and this democracy in the process. “

▪ Michigan Attorney General Dana Nessel, a Democrat, wrote, “The base of Texas’s claims rests on an assertion that Michigan has violated its own election laws. Not true. That claim has been rejected in the federal and state courts in Michigan... Texas does not have a cognizable interest in how Michigan runs its elections.”

Nessel added that Texas’s challenge is an “unprecedented one, without factual foundation or a valid legal basis.”

In the Nov. 3 election, Biden beat Trump by 7 million votes nationwide and won 306 electoral votes. If Trump were to gain Biden’s electoral votes from Wisconsin (10 electoral votes), Michigan (16), Pennsylvania (20) and Georgia (16), that would mean Biden would have only 244 electoral votes and hand the election to Trump. Trump would be able to add Biden’s 62 votes to his current total of 232 and wind up with 294. Needed to win are 270 electoral votes.

The Electoral College votes, including the 62 from the battleground states, will be officially tabulated Monday.

The independent U.S. Supreme Court internet news site, scotusblog.com, has authoritative coverage on the Republicans’ challenge to the Biden election.

This story was originally published December 13, 2020 at 5:00 AM.