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In the Supreme Court of
the United States
MOTION FOR LEAVE TO FILE BILL OF COMPLAINT
Ken Paxton* Attorney General of Texas
Brent Webster First Assistant Attorney General of Texas
Lawrence Joseph Special Counsel to the Attorney General of Texas
Office of the Attorney General
P.O. Box 12548 (MC 059)
Austin, TX 78711-2548
kenneth.paxton@oag.texas.gov
(512) 936-1414
* Counsel of Record
MOTION FOR LEAVE TO FILE
BILL OF COMPLAINT
Pursuant to 28 U.S.C. § 1251(a) and this Court’s Rule 17, the State of Texas respectfully seeks leave to file the accompanying Bill of Complaint against the
States of Georgia, Michigan, and Wisconsin and the Commonwealth of Pennsylvania (collectively, the “Defendant States”) challenging their administration of the 2020 presidential election.
As set forth in the accompanying brief and complaint, the 2020 election suffered from significant and unconstitutional irregularities in the Defendant States:
• Non-legislative actors’ purported amendments to States’ duly enacted election laws, in violation of the Electors Clause’s vesting State legislatures with plenary authority regarding the appointment of presidential electors.
• Intrastate differences in the treatment of voters, with more favorable allotted to voters – whether lawful or unlawful – in areas administered by local government under Democrat control and with populations with higher ratios of Democrat voters than other areas of Defendant States.
• The appearance of voting irregularities in the Defendant States that would be consistent with the unconstitutional relaxation of ballot-integrity protections in those States’ election laws. All these flaws – even the violations of state election law – violate one or more of the federal requirements for elections (i.e., equal protection, due process, and the Electors Clause) and thus arise under federal law. See Bush v Gore, 531 U.S. 98, 113 (2000) (“significant departure from the legislative scheme for appointing Presidential electors presents a federal constitutional question”) (Rehnquist, C.J., concurring). Plaintiff State respectfully submits that the foregoing types of electoral irregularities exceed the hanging-chad saga of the 2000 election in their degree of departure from both state and federal law. Moreover, these flaws cumulatively preclude knowing who legitimately won the 2020 election and threaten to cloud all future elections.
Taken together, these flaws affect an outcome determinative numbers of popular votes in a group of States that cast outcome-determinative numbers of electoral votes. This Court should grant leave to file the complaint and, ultimately, enjoin the use of unlawful election results without review and ratification by the Defendant States’ legislatures and remand to the Defendant States’ respective legislatures to appoint Presidential Electors in a manner consistent with the Electors Clause and pursuant to 3 U.S.C. § 2.
December 7, 2020
COUNT I: ELECTORS CLAUSE
COUNT II: EQUAL PROTECTION
COUNT III: DUE PROCESS
PRAYER FOR RELIEF
WHEREFORE, Plaintiff States respectfully request that this Court issue the following relief:
A. Declare that Defendant States Pennsylvania, Georgia, Michigan, and Wisconsin administered the 2020 presidential election in violation of the Electors Clause and the Fourteenth Amendment of the U.S. Constitution.
B. Declare that any electoral college votes cast by such presidential electors appointed in Defendant States Pennsylvania, Georgia, Michigan, and Wisconsin are in violation of the Electors Clause and the Fourteenth Amendment of the U.S. Constitution and cannot be counted.
C. Enjoin Defendant States’ use of the 2020 election results for the Office of President to appoint presidential electors to the Electoral College.
D. Enjoin Defendant States’ use of the 2020 election results for the Office of President to appoint presidential electors to the Electoral College and authorize, pursuant to the Court’s remedial authority, the Defendant States to conduct a special election to appoint presidential electors.
E. If any of Defendant States have already appointed presidential electors to the Electoral College using the 2020 election results, direct such States’ legislatures, pursuant to 3 U.S.C. § 2 and U.S. CONST. art. II, § 1, cl. 2, to appoint a new set of presidential electors in a manner that does not violate the Electors Clause and the Fourteenth Amendment, or to appoint no presidential electors at all.
F. Enjoin the Defendant States from certifying presidential electors or otherwise meeting for purposes of the electoral college pursuant to 3 U.S.C. § 5, 3 U.S.C. § 7, or applicable law pending further order of this Court.
G. Award costs to Plaintiff State.
H. Grant such other relief as the Court deems just and proper.
BRIEF IN SUPPORT OF MOTION FOR LEAVE
TO FILE BILL OF COMPLAINT
ARGUMENT
I. THIS COURT HAS JURISDICTION OVER PLAINTIFF STATE’S CLAIMS.
A. The claims fall within this Court’s constitutional and statutory subject-matter
jurisdiction.
B. The claims arise under the Constitution.
C. The claims raise a “case or controversy” between the States.
1. Plaintiff State suffers an injury in fact.
2. Defendant States caused the injuries.
3. The requested relief would redress the injuries.
D. This action is not moot and will not become moot.
E. This matter is ripe for review.
F. This action does not raise a nonjusticiable political question.
G. No adequate alternate remedy or forum exists.
II. THIS CASE PRESENTS CONSTITUTIONAL QUESTIONS OF IMMENSE NATIONAL CONSEQUENCE THAT WARRANT THIS COURT’S DISCRETIONARY REVIEW.
A. The 2020 election suffered from serious irregularities that constitutionally prohibit using the reported results.
1. Defendant States violated the Electors Clause by modifying their legislatures’ election laws through non-legislative action.
2. State and local administrator’s systemic failure to follow State election qualifies as an unlawful amendment of State law.
3. Defendant States’ administration of the 2020 election violated the Fourteenth Amendment.
B. A ruling on the 2020 election would preserve the Constitution and help prevent irregularities in future elections.
III. REVIEW IS NOT DISCRETIONARY.
IV. THIS CASE WARRANTS SUMMARY DISPOSITION OR EXPEDITED BRIEFING.
CONCLUSION
Leave to file the Bill of Complaint should be granted.
December 7, 2020
MOTION FOR EXPEDITED CONSIDERATION OF THE MOTION FOR LEAVE TO FILE A BILL OF COMPLAINT AND FOR EXPEDITION OF ANY PLENARY CONSIDERATION OF THE MATTER ON THE PLEADINGS IF PLAINTIFFS’ FORTHCOMING MOTION FOR INTERIM RELIEF IS NOT GRANTED
ARGUMENT
With respect to the merits if the Court neither grants the requested interim relief nor summarily resolves this matter in response to the motion for leave to file the bill of complaint, thus requiring briefing of the merits, Texas respectfully proposes the following schedule for briefing and argument:
December 8, 2020 Plaintiffs’ opening brief
December 8, 2020 Amicus briefs in support of plaintiffs or of neither party
December 9, 2020 Defendants’ response brief(s)
December 9, 2020 Amicus briefs in support of defendants
December 10, 2020 Plaintiffs’ reply brief(s) to each response brief
December 11, 2020 Oral argument, if needed
If the Court grants an administrative stay or other interim relief, but does not summarily resolve this matter in response to the motion for leave to file the bill of complaint, Texas respectfully proposes the following schedule for briefing and argument on the merits:
December 11, 2020 Plaintiffs’ opening brief
December 11, 2020 Amicus briefs in support of plaintiffs or of neither party
December 17, 2020 Defendants’ response brief(s)
December 17, 2020 Amicus briefs in support of defendants
December 22, 2020 Plaintiffs’ reply brief(s) to each response brief
December 2020 Oral argument, if needed
In the event that Congress moves the date for the electoral college and the House to vote or count votes, then the parties could propose an alternate schedule. If any motions to intervene are granted by the applicable deadline, intervenors would file by the applicable deadline as plaintiffs-intervenors or defendants-intervenors, with any still-pending intervenor filings considered as amicus briefs unless such prospective intervenors file or seek leave to file an amicus brief in lieu of their stillpending intervenor filings.
CONCLUSION
Texas respectfully requests that the Court expedite consideration of its motion for leave to file a bill of complaint based on the proposed schedule and, if the Court neither stays nor summarily resolves the matter and thus sets the case for plenary consideration, that the Court expedite briefing and oral argument based on the proposed schedule.
Dated: December 7, 2020
MOTION FOR PRELIMINARY INJUNCTION AND TEMPORARY RESTRAINING ORDER OR, ALTERNATIVELY, FOR STAY AND ADMINISTRATIVE STAY
ARGUMENT
I. THIS COURT IS LIKELY TO EXERCISE ITS DISCRETION TO HEAR THIS CASE.
II. THE PLAINTIFF STATE IS LIKELY TO PREVAIL.
A. This Court has jurisdiction over Plaintiff State’s claims
1. The claims fall within this Court’s constitutional and statutory subject-matter jurisdiction.
2. The claims arise under the Constitution.
3. The claims raise a “case or controversy” between the States.
a. Plaintiff State suffers an injury in fact.
b. The Defendant States caused the injuries.
c. The requested relief would redress the injuries.
4. Plaintiff State has prudential standing.
5. This action is not moot and will not become moot.
6. This matter is ripe for review.
7. This action does not raise a nonjusticiable political question.
8. No adequate alternate remedy or forum exists.
B. The Plaintiff State is likely to prevail on the merits.
1. Defendant States violated the Electors Clause by modifying their legislatures’ election laws through non-legislative action.
2. State and local administrator’s systemic failure to follow State election law qualifies as an unlawful amendment of State law.
III. THE OTHER WINTER-HOLLINGSWORTH FACTORS WARRANT INTERIM RELIEF
A. Plaintiff State will suffer irreparable harm if the Defendant States’ unconstitutional presidential electors vote in the Electoral College.
B. The balance of equities tips to the Plaintiff State.
C. The public interest favors interim relief.
IV. ALTERNATIVELY, THIS CASE WARRANTS SUMMARY DISPOSITION.
CONCLUSION
This Court should first administratively stay or temporarily restrain the Defendant States from voting in the electoral college until further order of this Court and then issue a preliminary injunction or stay against their doing so until the conclusion of this case on the merits. Alternatively, the Court should reach the merits, vacate the Defendant States’ elector certifications from the unconstitutional 2020 election results, and remand to the Defendant States’ legislatures pursuant to 3 U.S.C. § 2 to appoint electors.
December 7, 2020
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