The Galling Hypocrisy of Texas AG Ken Paxton

His lawsuit against states Biden won is a betrayal of everything defenders of federalism and the Electoral College claim to believe.

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 Electoral College—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. How states allocate their electoral votes is left up to their legislatures.

Since the Civil War, all states have decided to allot their electors to whichever candidate wins a majority of the vote within that state. 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 how we 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 on that to agree with the point I do want to make. 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 (rather than a majority 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, 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, you might think he had. Plenty of states changed their procedures to make voting in a pandemic safer and easier.  

Paxton wants 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 has joined the suit because, duh, he wants to stay president by any means.

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. I won’t focus on all the legal reasons it is deservedly doomed to fail, because it would be like trying to list all the reasons 2 plus 2 does not equal a horse. Nor will I dwell on the innumerate statistical hogwash it cites as evidence, even though it’s about as impressive as that equine equation. 

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, it would 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—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.