Nessel: Election lawsuit by Texas AG a 'publicity stunt' that is 'beneath the dignity' of people of Texas

Texas Attorney General Ken Paxton sued Michigan, Georgia, Pennsylvania and Wisconsin in the U.S. Supreme Court, accusing the swing states of using the COVID-19 pandemic to change mail-in voting in ways that skirted federal and state election laws. 

Paxton, a Republican and outspoken advocate of President Donald Trump, claims the states “flooded their people with unlawful ballot applications and ballots” and ignored rules for how such ballots need to be counted, according to a press release announcing the litigation.

In Michigan, the suit contends Secretary of State Jocelyn Benson sidestepped Michigan law by mailing unsolicited absentee ballot applications to all of Michigan’s registered voters, a move that was subsequently challenged and upheld by two state courts. Democratic President-elect Joe Biden defeated Republican President Donald Trump 51%-48% or by 154,000 votes in Michigan's certified results, giving the state's 16 electors to Biden.

The lawsuit seeks an order that calls the election results in Michigan unconstitutional, stops the state from choosing its electors based on the popular vote, and requires the Legislature to appoint its own electors in a way that doesn't conflict with the Constitution — or appoint no electors at all.

It was filed on safe harbor day, the federal deadline for states to finalize their slate of electors. Democratic Gov. Gretchen Whitmer on Nov. 24 signed letters recognizing Biden's 16 electors, who are required to cast their votes for him on Monday, barring legal intervention.

The suit's chances success seemed slim after the U.S. Supreme Court on Tuesday afternoon rejected Republicans' bid to reverse Pennsylvania's certification of Biden's victory. 

Michigan Attorney General Dana Nessel, a Democrat, called the filing a “publicity stunt” that was “beneath the dignity” of Paxton’s office and the people of Texas. 

“The erosion of confidence in our democratic system isn’t attributable to the good people of Michigan, Wisconsin, Georgia or Pennsylvania but rather to partisan officials, like Mr. Paxton, who place loyalty to a person over loyalty to their country,” Nessel said in a statement.

“The Michigan issues raised in this complaint have already been thoroughly litigated and roundly rejected in both state and federal courts by judges appointed from both political parties.”

Benson also was dismissive of the suit, which recycled many of the claims her office and other election experts have explained or rebuffed in recent weeks in committee hearings and court.

"This lawsuit seems to suggest that the voters of Michigan messed with Texas," tweeted Benson, a Detroit Democrat. "They didn't. Case closed."

But the Trump campaign's legal team tried to keep hope alive Tuesday by arguing that "it is not unprecedented" for elections to go beyond Dec. 8, citing the Supreme Court decision in 2000 that solidified George W. Bush's victory in Florida and thus in the Electoral College.

“Justice (Ruth Bader) Ginsburg recognized in Bush v. Gore that the date of ‘ultimate significance’ is January 6, when Congress counts and certifies the votes of the Electoral College. The only fixed day in the U.S. Constitution is the inauguration of the President on January 20 at noon," Rudy Giuliani and Jenna Ellis said in a statement.

“Despite the media trying desperately to proclaim that the fight is over, we will continue to champion election integrity until legal vote is counted fairly and accurately.”

The suit is not much more than "showmanship" that has little chance of success largely because the issues raised should be addressed in state courts, where they "have been uniformly rejected," said Richard Friedman, professor of law at University of Michigan Law School. 

It's also doubtful whether Texas has standing to bring the case or whether Paxton waited too long to bring a complaint against Michigan election policies dating back to May and June, Friedman said. 

"You can’t wait until the game is played and then say, 'You know what? We don’t like those rules,'” he said.

The U.S. Supreme Court also likely would consider the issue outside its jurisdiction under the political question doctrine, Friedman said. Since the safe harbor date is about to be passed and states' election results certified, the job of counting the electoral votes on Jan. 6 falls to the Congress. 

"By federal law, the certifications are conclusive for Congress," Friedman said. "They’re bound to accept it, and it’s hard for me to see the Supreme Court would see any reason to intervene.”

The Texas lawsuit largely focuses on “non-legislative” changes made to Michigan’s electoral process, including the unsolicited mailing of absentee ballot applications to all registered voters and electronic absentee ballot applications that didn’t require signatures but required other forms of verification. 

The modifications " resulted in a number of constitutionally tainted votes that far exceeds the margin of voters separating the candidates in Michigan," the lawsuit said. 

State Court of Claims Judge Cynthia Stephens ruled in August that Benson had the power to issue absentee ballot applications, a process historically reserved for local clerks, because she outranked "those local election officials over whom she has supervisory control." In September, a Michigan Court of Appeals panel upheld Stephens' ruling 2-1, noting Benson had "inherent" authority to mail the applications.

In addition, several groups around the state sent unsolicited absentee ballot applications, including the state Democratic and Republican parties.

In June, Benson announced an online platform for voters to digitally submit their absentee voter ballot application, which they had previously been able to do by scanning and emailing signed applications to clerks. 

In order to use the new platform, voters had to have a Michigan's driver's license or state ID and a Social Security number. Once the application was completed, voters then used the tool to send the handwritten signature from their driver's license or state ID and completed application to the local clerk through the qualified voter file. 

"Clerks will be alerted of the request and be able to see the application and signature," Benson's June 12 statement said. "After verification, local clerks are then able to mail the ballot to the voter within the appropriate timeframe for the election they’ve requested to vote absentee."

Voters still were required to cast their absentee ballots in the traditional way, by filling out the absentee ballot and signing the envelope which is then matched to the signature on file. 

The lawsuit incorrectly states Michigan's absentee ballot total in the 2016 general election as 587,618, when the total actually was 1.27 million, to point to a big jump in absentee participation in 2020, when a record 3.3 million absentee ballots were cast. 

Michigan's absentee ballot participation did jump from 2016, in large part due to virus fears and a 2018 voter-approved proposal that allowed for no-reason absentee voting for the first time in Michigan's history. 

The lawsuit also raises claims that have not withstood scrutiny in several other Michigan lawsuits, including that poll challengers were not given meaningful access to absentee counting operations at the TCF Center in Detroit and that signatures on ballots counted at the TCF Center had not been checked. 

Officials have maintained more than 100 Republican poll challengers had access to Detroit's counting process, but additional challengers were blocked Nov. 4 from entering the room because of COVID-19 capacity restrictions. 

In terms of signature checks, poll workers were not required to check signatures at the TCF Center on ballot envelopes because that process had already been completed and the ballot logged into the qualified voter file prior to it arriving to the Detroit counting center. 

eleblanc@detroitnews.com

Bloomberg contributed.