Texas AG’s lawsuit is shameful hypocrisy

I’m angry. I have been defending the Electoral College and the larger Madisonian vision behind it— often called “federalism”— for decades. As a pointed critic of the president, this put mein the awkward position of defending the legitimacy of his presidency— Donald Trump lost the popular vote in 2016 but won in the Electoral College— while simultaneously arguing hewas unfit for the job to which hewas legitimately elected.

Before I get to why I’m angry, letme explain something. Under the Constitution, the citizenry doesn’t elect the president; the states do. They do this by appointing electors who vote in the Electoral College. How states allocate their electoral votes is left up to their legislatures.

Since the Civil War, nearly all states have decided to allot their electors to whichever candidate wins a majority of the vote within that state (except for Maine and Nebraska, which award two electoral votes to the popular vote winner and one electoral vote to the popular vote winner in each congressional district). But the legislatures don’t have to do it this way. Indeed, prior to the Civil War, South Carolina didn’t have a statewide vote for president. The legislature decided which candidate the state’s electors should vote for.

I have no philosophical problem with that approach. If the people of a state don’t want all the drama of a presidential election, they’re free to ask their elected representatives to decide which candidate should win the state.

But that’s not howwe do it, and that’s fine too.

I’ll spare you all the arguments for why I think the Electoral College is a good thing, in part because you don’t have to agree with me to agree with the point I do want tomake. Suffice it to say that one of the core arguments from defenders of the Electoral College is that it’s a bulwark against despotism. By forcing presidents to cobble together a majority of states, the “tyranny of the majority” (or minority) is held at bay.

Which brings me tow hy I’m so angry. The attorney general of Texas, Ken Paxton, is suing Pennsylvania, Wisconsin, Michigan and Georgia for “unlawful” changes to their election laws in advance of the 2020 presidential election. Paxton didn’t choose these four states at random, though if you didn’t know they’re the four battleground states that delivered Joe Biden his Electoral College victory, youmight think he had. Plenty of states changed their procedures tomake voting in a pandemic safer and easier.

Paxton wanted the Supreme Court to invalidate election results in these four states and have the state legislatures decide who gets their electoral votes, on the assumption they’ d handt hep residency to Trump. President Trump joined the suit because, duh, hewants to stay president by any means. (Friday night, the Supreme Court rejected the lawsuit.)

Even in this particularly dumb chapter in American history, to say that this lawsuit stands out as a shining example of willful stupidity would be an understatement.

But philosophically this lawsuit is a betrayal of everything defenders of federalism and the Electoral College claim to believe.

The state of Texas has no standing to complain how those other states conduct elections or appoint their electors. If it were taken seriously, itwould open a Pandora’s box of asininity in which various states would use the federal government to dictate how other states operate.

More infuriating, the driving impetus of this lawsuit— outrageously joined by 17 other Republican run-states and supported by 106 House Republicans who signed an amicus brief thatwas filed Thursday— is to steal a presidential election.

That’s why you don’t have to agree with me about the Electoral College; the Republicans supporting this lawsuit have long claimed to agree with me about the Electoral College and its role in the constitutional order.

Yet they are throwing that away to aid and abet a president in precisely the sort of constitutional crime the Electoral College was designed to prevent.

It is an act of cynical, unpatriotic, undemocratic hypocrisy unrivaled in American history, a pure power play on behalf of a president whose disregard for the very Constitution these people have long claimed to adore is total.

It is shameful. Infuriatingly shameful.