Loeffler and Perdue back Texas suit aiming to overturn elector slates in Georgia, other states Biden won

Texas AG: State legislatures have authority to identify electors

Ken Paxton discusses the details of his new election integrity lawsuit on ‘Hannity.’

Sens. David Perdue and Kelly Loeffler on Tuesday announced their support of a Texas lawsuit at the Supreme Court which seeks to have the justices declare that Pennsylvania, Michigan, Wisconsin and Georgia are "in violation of the Electors Clause of and the Fourteenth Amendment" and bar those states' current slates of presidential electors from casting their votes. 

The suit, led by Texas Attorney General Ken Paxton, is an extraordinary effort to essentially overturn the result of the presidential election, which President-elect Biden won because of key victories by tens of thousands of votes in the states Texas is suing. This latest legal action, following numerous losses by President Trump's legal teams and his allies, seeks to take advantage of the Supreme Court's rarely used original jurisdiction to bypass the lower courts and put the issue directly in front of the justices. 

Loeffler and Perdue, both Georgia Republicans who have backed challenges to the result in Georgia and even gone so far as to call for the Republican secretary of state's resignation, announced Tuesday that they support the effort. 

"We fully support President Trump’s legal recourses and Attorney General Paxton's lawsuit," the senators said in a joint statement. "The President has every right to use every legal recourse available to guarantee these simple principles: every lawful vote cast should be counted, any illegal vote submitted cannot be counted, and there must be full transparency and uniformity in the counting process."

Loeffler and Perdue added: "This isn't hard and it isn't partisan. It's American. No one should ever have to question the integrity of our elections system and the credibility of its outcomes."

Raphael Warnock, Loeffler's opponent in the Jan. 5 runoff, meanwhile slammed the senator's support for the Texas suit as a "new low."

READ A COPY OF THE FILING HERE

"This out-of-state lawsuit is trying to undo the will of Georgia voters," he said in a tweet. "Ballots were counted three times. I am proud to stand with the overwhelming majority of Georgians of both parties who believe in defending democracy and fair elections."

The suit, at its heart, argues that the defendant states used "the COVID-19 pandemic as a justification" to usurp "their legislatures' authority and unconstitutionally revised their state's election statutes." The Constitution gives the power to set how states' electors are chosen to the state legislatures.

It's unclear how literally the Supreme Court would interpret this clause — some state constitutions, like Pennsylvania's, give courts the authority to step in and adjust laws in emergency circumstances. Further, the Supreme Court has recognized state executives' emergency powers, within certain limits, to deal with crises like the pandemic. It's also unclear whether the justices would grant such a request in these circumstances, with Inauguration Day a little more than a month away. 

But the argument — though a longshot — appears to be one that the court may be the most receptive to after lower courts almost uniformly dismissed suits arguing specific instances of fraud. 

Ken Paxton, Texas attorney general, speaks during a news conference outside the Supreme Court in Washington, D.C., U.S., on Monday, Sept. 9, 2019. (Andrew Harrer/Bloomberg via Getty Images)

Before the election, the Supreme Court declined to fast track a suit brought by the Pennsylvania Republican Party arguing a three-day deadline extension for mail ballots to be received by election authorities was improperly implemented by the state supreme court. The party said that state legislatures are the only bodies that can make election law, even in emergencies.

Though the justices said that they could not properly review the suit before the election, they left the door open to taking it up after the election. Justice Samuel Alito, joined by Justices Neil Gorsuch and Clarence Thomas, wrote a statement saying that "there is a strong likelihood that the State Supreme Court decision violates the Federal Constitution."

The Texas suit is significantly different from the Pennsylvania GOP's suit in that it is asking the court to delay the deadline for the appointment of electors and bar electoral votes from certain states from being counted — all after the states have certified their results. But the crux of the argument that only state legislatures can set presidential election rules remains the same. 

Democratic lawyer Marc Elias, who has been involved in election-related cases in many states, weighed in on the suit on Tuesday.

"My answers to your questions: No, I am not worried. No, this won't succeed. I have no idea," Elias wrote on Twitter.

And Georgia Attorney General Chris Carr, a Republican, also slammed the Texas suit. 

"With all due respect, the Texas Attorney General is constitutionally, legally and factually wrong about Georgia," a Carr spokesman told the Dallas Morning News. Carr is the recently named chairman of the Republican Attorneys General Association. 

The Supreme Court gave the four states being sued until Thursday at 3 p.m. to file responses.

Fox News' Evie Fordham, Bill Mears and Shannon Bream contributed to this report. 

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