West Coast Representatives signed on to amicus brief seeking to delay electoral college vote

While the US Supreme Court rejected on Friday a lawsuit that would have prevented four states from casting their Electoral College votes for President-elect Joe Biden as scheduled on Monday, California and Washington US Representatives are among the more than 125 House Republicans that signed on to an amicus brief supporting the lawsuit.   

Seventeen Republican state attorneys general joined with Texas Attorney General Ken Paxton in the suit and at 125 signees, over half of the House Republican Caucus signed on to the amicus brief.

 

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What the amicus brief argued

The attorneys for Amici Curiae wrote that in the months before the 2020 election, the rules by which certain states appoint presidential electors were “deliberately changed by both state and non-state actors.” As a result, the brief argued, the authority of those state legislatures to determine the rules for appointing electors was usurped.

In the amicus brief, the plaintiff’s argument was summarized and broken down into 5 tenets: 

1:  The U.S. constitution gives plenary authority to state legislatures to determine the manner of appointing presidential electors.

In keeping with this first tenet, the brief argues that the following violations occurred:  

2: The usurpation of legislative power in Georgia produced unconstitutional ballots. 

Georgia’s Republican Attorney General Christopher M. Carr filed a brief which stated: “Contrary to Texas’s argument, Georgia has exercised its powers under the Electors Clause. Georgia’s legislature enacted laws governing elections and election disputes, and the State and its officers have implemented and followed those laws.”

3:  The usurpation of legislative power in Pennsylvania produced unconstitutional ballots. 

Pennsylvania state officials filed a response to the complaint on Thursday which said Texas’ attempt to “anoint” its preferred presidential candidate is “legally indefensible and is an affront to principles of constitutional democracy.”

4: The usurpation of legislative power in Michigan produced unconstitutional ballots. 

Michigan officials blasted the suit in its response saying: “Consistent with Michigan law, the State of Michigan has certified its presidential vote and the election in Michigan is over. The challenge here is an unprecedented one, without factual foundation or a valid legal basis.”

5: The usurpation of legislative power in Wisconsin produced unconstitutional ballots. 

Wisconsin officials called the lawsuit “flat out wrong” and “devoid of a legal foundation and a factual basis.” The brief points out that “Texas proposes an extraordinary intrusion into Wisconsin’s and the other defendant States’ elections, a task that the Constitution leaves to each State.” 

Who signed on to the amicus brief?

Four California Representatives — Reps. Kevin McCarthy, Ken Calvert, Doug LaMalfa, and Tom McClintock — all signed on to the amicus brief. 

In a statement on November 19, Rep. Calvert said, 

“Overall, I believe the election was fair, but any time you change the rules while an election is underway – as we saw in many states due to the pandemic – there will inevitably be legal challenges, which our courts will ultimately resolve.

At the end of the day the winner of our presidential election isn’t determined by candidates, political parties, or the media, it’s determined by the certification of results by states and those results are then reflected by the Electoral College vote. I will certainly respect that outcome.”

At the beginning of December, Rep. LaMalfa introduced the “Election Certainty Act” which he says aims to put “safeguards around the ballot collecting process.” He says this act is in response to changes to the voting process put in place this year. 

“America has gone from election day to election months, due to early voting, extensive mail balloting, and late ballots being accepted,” said LaMalfa. “If Americans don’t trust the way ballots are counted, they will never trust the outcome of the election and we cannot move forward…This election was a complete fiasco with rules being changed repeatedly by out-of-control Governors, a prime example being Gavin Newsom.”

Rep. McCarthy, who serves as House Minority Leader, wasn’t included in the original amicus brief filed Thursday, but was added on Friday. 

In Washington State, two of the state’s three Republican US Representatives signed onto the amicus brief. Both Reps. Cathy McMorris Rodgers and Dan Newhouse were included; Rep. Jaime Hererra Beutler was not. 

“Joining this amicus brief is not about trying to overturn the results of an election, but is simply about ensuring the American people have faith in our elections and our Constitution,” said Rep. Newhouse in a statement on Thursday. 

In a statement, Rep. McMorris Rodgers said the purpose of the lawsuit is to allow the Supreme Court to weigh in on questions related to “voter fraud and election impropriety.” She said President Trump has the right to pursue legal recourse to answer these questions. 

“This amicus brief specifically focuses on Constitutional requirements for elections and the legal requirement that changes to election processes be approved by state legislatures, as well as the state laws which require election officials to check signatures on mail-in ballots. These are Constitutional principles of free and fair elections, and if they have been violated, the American people have a right to know,” said McMorris Rodgers.  

Alaska US Rep. Don Young was not among the over 125 Representatives included in the amicus brief, though other Alaskans signaled their support for the lawsuit. 

Acting Alaska Attorney General Ed Sniffen on Thursday sent a letter requesting to be included in the list of states that had signed on in support of the lawsuit. 

That same day, Gov. Dunleavy announced Alaska was joining the lawsuit. He said, 

“Signing onto cases such as this should never be taken lightly. While this case concerns election integrity, it also has an impact on state’s rights. As Alaskans, we should all be careful about involving ourselves in the inner workings of other states. However, the issue of election integrity impacts all of us, and the question of free and fair elections must be answered in order for all Americans to have confidence in our system. We hope for an expedited decision from the Supreme Court.”

With the Supreme Court’s rejection of the lawsuit, the Dec. 14 deadline for the Electoral College electors to cast ballots in the four states will remain in place.