Texas AG’s lawsuit a shameful display of 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 me in the awkward position of defending the legitimacy of his presidency— Donald Trump lost the popular vote in 2016 but won in the Electoralcollege— while simultaneously arguing he was unfit for the job to which he was legitimately elected.

Before I get to why I’m angry, let me 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. Hows tates allocate their electoral votes is left up to their legislatures.

Since thecivilwar, nearly all states have decided to allot their electors to whichever candidate wins amajority of the vote within that state ( except for maine and Nebraska, which award two electoral votes to the popular votewinner and one electoral vote to the popular votewinner in each congressional district). But the legislatures don’t have to do it this way.

Indeed, prior to the Civilwar, Southcarolina 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 Electoralcollege is a good thing, inpart 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 amajority of states ( rather than amajority of voters), the “tyranny of the majority” ( or minority) is held at bay.

Again, disagree if you like, but that’s a big part of the argument.

Which brings me to why I’m so angry. The attorney general of Texas, Ken Paxton, sued 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 to make 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 hand the presidency to Trump. President Trump joined the suit because, duh, he wants to stay president by any means.

Even in this particularly dumb chapter in American history, to say this lawsuit stands out as a shining example of willful stupidity would be an understatement. I won’t focus on all the legal reasons it deservedly failed because it would be like trying to list all the reasons 2 plus 2 does not equal a horse. Norwill I dwell on the innumerate statistical hogwash it cited as evidence, even though it’s about as impressive as that equine equation.

But philosophically this lawsuit was 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 had been taken seriously, itwould have opened 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 126 House Republicans who signed an amicus brief that was filed Thursday— was 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.