in the supreme court of the united...

No. 22O155, Original

In the Supreme Court of the United States

STATE OF TEXAS,

Plaintiff,

v.

COMMONWEALTH OF PENNSYLVANIA, STATE OF

STATE OF GEORGIA, STATE OF MICHIGAN, AND

STATE OF WISCONSIN,

Defendants.

MOTION TO ENLARGE WORD-COUNT LIMIT

AND REPLY IN SUPPORT OF MOTION FOR

LEAVE TO FILE BILL OF COMPLAINT

Ken Paxton

Counsel of Record

Attorney General of Texas

Brent Webster

First Assistant Attorney

General of Texas

Lawrence Joseph

Special Counsel to the


P.O. Box 12548 (MC 059)

Austin, TX 78711-2548

[email protected]

(512) 936-1414

i



STATE OF TEXAS,

Plaintiff,

v.



STATE OF WISCONSIN,

Defendants.

MOTION TO ENLARGE

WORD-COUNT LIMIT

Movant State of Texas respectfully requests this

Court’s leave to file a single combined reply of 5,400

words in support of its Motion for Leave to File a Bill

of Complaint against four defendant States, each of

which filed a separate response to Texas’s motion.

ii

December 11, 2020

Respectfully submitted,

Ken Paxton

Counsel of Record


Brent Webster


General of Texas

Kurt B. Olson

Lawrence Joseph



Grant Dorfman

Deputy First Assistant


Aaron Reitz

Deputy Attorney General for

Legal Strategy

Lesley French Henneke

Chief of Staff

Austin Kinghorn

General Counsel

Office of the Attorney General

P.O. Box 12548 (MC 059)

Austin, TX 78711-2548

[email protected]

(512) 936-1414

iii

TABLE OF CONTENTS

Pages

Table of Authorities ................................................... iv

Reply in Support of Motion for Leave to File ............ 1

Introduction ................................................................ 1

Argument .................................................................... 2

I. Defendant States’ factual arguments lack

merit. .................................................................... 2

A. Pennsylvania’s critiques of the evidence

are false. ......................................................... 2

B. Georgia’s critiques of the evidence are

false. ............................................................... 4

C. Michigan’s critiques of the evidence are

false. ............................................................... 5

D. Wisconsin’s critiques of the evidence are

false. ............................................................... 7

II. Defendant States’ legal arguments lack

merit. .................................................................... 9

A. Pennsylvania changed its deadline for

receiving ballots through judicial, not

legislative, action. .......................................... 9

B. Pennsylvania cannot ignore the express

terms of state law concerning signatures. .. 12

C. The Michigan Secretary of State violated

state statute when she mailed absentee

ballot applications. ...................................... 14

D. Georgia abrogated its statutes. ................... 17

E. Wisconsin abrogated its statutes. ............... 20

III. This case warrants summary disposition or

expedited briefing. ............................................. 22

Conclusion ................................................................ 23

iv

TABLE OF AUTHORITIES

Pages

Cases

Arizona State Legislature v. Arizona Indep.

Redistricting Comm’n, 576 U.S. 787 (2015) ....... 11

Barnhart v. Peabody Coal Co., 537 U.S. 149

(2003) ................................................................... 15

Davis v. Secretary of State, 2020 WL 5552822

(Sept. 2020) ......................................................... 15

Democratic Party of Georgia, et al. v.

Raffensperger, et al., Civil Action No. 1:19-cv-

5028-WMR (N.D. Ga. Mar 6, 2020) .................... 19

Democratic Party v. Boockvar, 238 A.3d 345 (Pa.

2020) ............................................................... 10-11

Frazier v. United States, 335 U.S. 497 (1948) ........... 3

In re November 3, 2020 Gen. Election, 2020 WL

6252803 (Oct. 3, 2020) ........................................ 14

League of Women Voters of Pennsylvania v.

Boockvar, No. 2:20-cv-03850-PBT (E.D. Pa.

Aug. 7, 2020) ....................................................... 13

Shipley v. Chicago Bd. of Election Comm’rs, 947

F.3d 1056 (7th Cir. 2020) .................................... 20

Wood v. Raffensperger, No. 1:20-cv-04651-

SDG, 2020 WL 6817513 (N.D. Ga.

Nov. 20, 2020) ............................................... 4-5, 19

Statutes

U.S. CONST. art. II, § 1, cl. 2 .................................... 11

U.S. CONST. art. VI ................................................... 11

Ga. Code Ann. § 21-2-31 ........................................... 17

Ga. Code Ann. § 21-2-493 ......................................... 17

K.S.A. 25-1120 .......................................................... 16

v

M.C.L. § 168.715 ....................................................... 16

M.C.L. § 168.759(2), (4)-(5) ...................................... 16

M.C.L. § 168.759(3) .................................................. 16

M.C.L. § 168.759(3)(b) .............................................. 16

M.C.L. § 168.759(4)-(5) ............................................. 16

M.C.L. § 78.21(1) ...................................................... 16

Mich. Const 1963, art 5, § 9 ..................................... 16

O.C.G.A. § 21-2-31(10) ............................................. 18

O.C.G.A. § 21-2-386 .................................................. 18

O.C.G.A. § 21-2-386(a)(1)(B) ............................... 18-19

O.C.G.A. § 21-2-386(a)(2) ......................................... 17

O.C.G.A. § 21-2-386(a)(3) ......................................... 18

Pa. Const. art. I, § 5, cl. 1 ......................................... 10

25 P.S. § 3050(a.3)(2) ................................................ 13

25 P.S. § 3146.6(a) .................................................... 12

25 P.S. § 3146.6(c) .................................................... 10

25 P.S. § 3146.8 ........................................................ 13

25 P.S. § 3150.12 ...................................................... 12

25 P.S. § 3150.16(a) .................................................. 12

Wis. Stat. § 6.87(4)(b) ............................................... 22

Rules, Regulations and Orders

S.Ct. Rule 17.5 ............................................................ 1

State Rule 183-1-14-0.9-.15...................................... 17



STATE OF TEXAS,

Plaintiff,

v.



STATE OF WISCONSIN,

Defendants.

REPLY IN SUPPORT OF

MOTION FOR LEAVE TO FILE

Pursuant to S.Ct. Rule 17.5, the State of Texas

(“Plaintiff State”) respectfully submits this reply in

support of its Motion for Leave to File a Bill of

Complaint against the Commonwealth of Pennsyl-

vania and the States of Georgia, Michigan, and

Wisconsin (collectively, “Defendant States”).

INTRODUCTION

By this Reply, Texas addresses Defendant

States’ arguments that Texas fails to state a claim

because the challenged actions did not change or

violate state election statutes. In an effort to obfuscate

their unconstitutional abrogation of election security

measures in the name of COVID-19, Defendant States

tack between misstating the facts pled in the

Complaint and arguing that this Court can ignore the

2

express language in those statutes. Neither approach

has merit.

Texas addresses Defendant States’ arguments

against Texas’s standing and purportedly alternate

remedies to this action in its separate reply in support

of the motion for interim relief.

ARGUMENT

I. DEFENDANT STATES’ FACTUAL

ARGUMENTS LACK MERIT.

Defendant States’ factual defense of the admin-

istration of the 2020 election lacks merit. Thus, Texas

states a claim on those issues.

A. Pennsylvania’s critiques of the evidence

are false.

Pennsylvania attacks Dr. Cicchetti’s probability

analysis calculating that the statistical chances of Mr.

Biden’s winning the election in the Defendant States

individually and collectively, given the known facts,

are less than one in a quadrillion. Penn. Br. 6-8.

Pennsylvania argues that Dr Cicchetti did not take

into account that “votes counted later were

indisputably not ‘randomly drawn’ from the same

population of votes” in his analysis. Penn. Br. 6-8.

Pennsylvania is wrong.

First, Dr. Cicchetti did take into account the

possibility that votes were not randomly drawn in the

later time period but, as stated in his original

Declaration, he is not aware of any data that would

support such an assertion. See Supplemental

Declaration of Charles Cicchetti (“Supp. Cicchetti

Decl.”) ¶¶ 2-3. (App. 152a-153a). Second, although

Pennsylvania argues that such data is

3

“indisputabl[e]”, Pennsylvania offers in support

nothing other than counsel’s assertion. Unsworn

statements of counsel, however, are not evidence. See

Frazier v. United States, 335 U.S. 497, 503 (1948).

In fact, Pennsylvania’s rebuttal to Dr. Cicchetti’s

analysis consists solely of ad hominem attacks, calling

it “nonsense” and “worthless”. Penn Br. 6, 8. Notably,

a subsequent analysis by Dr. Cicchetti, comparing Mr.

Biden’s underperformance in the Top-50 urban areas

in the Country relative to former Secretary Clinton’s

performance in the 2016 election, reinforces the

unusual statistical improbability of Mr. Biden’s vote

totals in the five urban areas in the Defendant States.

See Supp. Cicchetti Decl. at ¶¶ 4-12, 20-21. (App.

154a-158a).

Pennsylvania also tries to explain away the

reported 400,000 discrepancy between the number of

mail-in ballots Pennsylvania sent out as reported on

November 2, 2020 (2.7 million) and the figure reported

on November 4, 2020 (3.1 million) as described in the

Ryan Report. Penn. Br. 6-8; Compl. ¶ 59.

Pennsylvania again conclusorily asserts that the

discrepancy is purportedly due to the fact that “[o]f the

3.1 million ballots sent out, 2.7 million were mail-in

ballots and 400,000 were absentee ballots.”

Pennsylvania Br. 6. However, as fifteen Pennsylvania

legislators stated in the Ryan Report, signed on

December 4, 2020: “This discrepancy ... has not been

explained.” Compl. ¶ 59. Compl. ¶ 59 (App. 143a-44a).

The Ryan Report states further: “This apparent

discrepancy can only be evaluated by reviewing all

transaction logs into the SURE system...” (App. 144a).

4

Pennsylvania’s unsupported explanation has no

merit.

Notably, Pennsylvania says nothing about the

118,426 ballots that had no mail date, were

nonsensically returned before the mailed date, or were

improbably returned one day after the mail date. ¶ 57.

Lastly, Pennsylvania argues that it did not break its

promise to this Court to segregate ballots received

after November 3, 2020. Penn. Br. 6. Justice Alito’s

order dated November 6, 2020 belies that argument.

See Compl. ¶ 8. And because Pennsylvania broke its

promise to this Court, it is not possible to determine

how many tens, or even hundreds of thousands of

illegal late ballots were wrongfully counted. Compl. ¶

55.

B. Georgia’s critiques of the evidence are

false.

Georgia argues that the “[r]ejection rates for

signatures on absentee ballots remained largely

unchanged” as between the 2018 and 2020 elections,

referring the Court to Wood v. Raffensperger, No. 1:20-

cv-04651-SDG, 2020 WL 6817513, at *10 (N.D. Ga.

Nov. 20, 2020) (“Wood”). Georgia Br. 4. Georgia’s

reliance on Wood is misplaced because the analysis

therein related to rejection rates for absentee

ballots—as opposed to the mail-in ballots analyzed by

Dr. Cicchetti. Supp. Cicchetti Decl. ¶¶ 13-19. (App.

158a-60a). Georgia’s rejection rate comparison is

therefore inapposite. Id.

Specifically, the district court in Wood cited to

“ECF 33-6” (id. at n.30) which is the affidavit of Chris

Harvey, Georgia Director of Elections. First, the

Harvey Affidavit itself does not cite any evidence for

5

signature rejection rates; rather, it relies solely upon

a complaint in an unrelated action. Supp. Cicchetti

Decl. ¶¶ 14-15. (App. 158a-59a) (citing Democratic

Party of Georgia et al. v. Raffensperger). Second, as

explained by Dr. Cicchetti, the Harvey Affidavit relies

on 2018 data which does not provide an accurate

comparison with a presidential election year. Id. ¶¶

19, 22. (App. 160a-62a). More importantly, the

Harvey affidavit discusses absentee ballots—not

mail-in ballots at issue here and as analyzed by Dr.

Cicchetti. Mail-in ballots are subject to much higher

rejection rates. Indeed, in 2018, the rejection rate for

mail-in ballots was actually 3.32% or more than

twenty times higher than the rejection rate for the

absentee ballots that Georgia incorrectly compares to

dispute Dr. Cicchetti’s analysis. . Id. at ¶¶ 16-18.

(App. 159a-60a). In short, Georgia’s attempt to rebut

Dr. Cicchetti’s analysis fails. Id. ¶ 22. (App. 161a-62a).

C. Michigan’s critiques of the evidence are

false.

Michigan’s argument against the evidence of

irregularities in Wayne County’s election process

fares no better. First, Michigan concedes that, with

respect to the ballots issued pursuant to the Secretary

of State’s unlawful mailing of ballot applications and

online ballot applications—which also did not comply

with statutory signature verification requirements—

"there is no way to associate the voter who used a

particular application with his or her ballot after it is

voted.” Mich. Br. 9; Compl. ¶¶ 81-87. Michigan’s

“heads we win, tails you lose” defense should be

rejected. This is a problem solely of the Secretary of

State’s own making.

6

Michigan also admits that it “is at a loss to explain

the[] allegations” showing that Wayne County lists

174,384 absentee ballots that do not tie to a registered

voter. Mich. Br. 15; Compl. ¶ 97. That is precisely the

point. And it illustrates exactly why the Court should

grant Plaintiff’s motion.

Similarly, Michigan’s argument that the fact that

71% of Detroit’s Absent Voter Counting Boards

(“AVCBs”) were unbalanced provides no basis not to

certify results is false. Mich. Br. 16. In fact, while

Michigan asserts that this “can happen for a number

of innocuous reasons” it nonetheless offers no

explanation for the highly suspicious circumstances:

that this out of balance situation resulted in more

than 174,000 votes not being tied to a registered voter;

that two members of the Wayne County Board of

Canvassers initially voted against certification based

on these issues, then voted in favor of certification

after receiving both threats and assurances of an

immediate audit; and then rescinded their

certification votes after the promised audit was

refused. Compl. ¶¶ 99-101. Texas understands that

these issues involving Wayne County’s irregular votes

have not been adjudicated, and Michigan does not

contend otherwise. But it is suggestive at this

preliminary stage of the proceeding.

Lastly, Michigan’s attempts to argue away the

evidence showing that Wayne County had a policy of

not performing signature verifications as required

under MCL § 168.765a(6) are misplaced. Mich. Br. 14-

15; Compl. ¶¶ 85-87, 92-95. Michigan cites the

affidavit of Christopher Thomas, a consultant for

Detroit, used in litigation in Michigan state court, as

7

evidence for its assertion. Mich. Br. 11, 15-16.

Thomas, however, does not state that he personally

observed signatures being verified in accordance with

MCL § 168.765a(6). That statute requires that the

clerk place a “written statement” or “stamp” on each

ballot envelope where the voter signature is placed,

indicating that the voter signature was in fact checked

and verified with the signature on file with the State.

Compl. ¶ 92. Thus, contrary to Michigan’s argument,

Thomas’ assertions do not rebut the testimony of

Jessy Jacob, a decades-long City of Detroit employee

stating that election workers were instructed not to

compare signatures. Id. ¶ 94. In fact, a poll

challenger, Lisa Gage, testified in an affidavit that

has not been submitted in any prior litigation, that

not a single one of the several hundred to a thousand

ballot envelopes she observed had a written statement

or stamp indicating the voter signature had been

verified at the TCF Center in accordance with MCL §

168.765a(6). Affidavit of Lisa Gage ¶ 17. (App. 165a).

D. Wisconsin’s critiques of the evidence are

false.

Wisconsin argues that “Texas offers no proof of a

single voter who cast a ballot in the general election

who did not qualify for indefinite confinement status.”

Wisc. Br. 31. Under Wisconsin law, “indefinite

confinement status” allows a voter to avoid

Wisconsin’s statutory photo identification and

signature verification requirements. Compl. ¶¶ 115-

17. The number of people claiming this special status

exploded from fewer than 57,000 voters in 2016 to

nearly 216,000 in 2020. Compl. ¶ 122. Wisconsin

8

claims this increase was due to more people voting by

mail in 2020. Wisc. Br. 31.

Voting by mail, however, has nothing to do with

being classified as “indefinitely confined.” Wisconsin

offers no plausible justification for this nearly four-

fold increase in voters claiming this special status.

Wisconsin also ignores the fact that the Wisconsin

Supreme Court found that clerks in Dane County and

Milwaukee County had earlier violated Wisconsin law

by issuing guidance stating that all voters should

identify themselves as “indefinitely confined” on

absentee ballot applications because of the COVID-19

pandemic. Compl. ¶¶ 118-19. Despite that order, the

WEC again violated Wisconsin law and issued a

directive to the Wisconsin clerks prohibiting removal

of voters from the registry for indefinite-confinement

status even if the voter is no longer “indefinitely

confined,” thereby cementing this improper practice

in the 2020 general election. Id. at ¶¶ 120-21.

Lastly, Wisconsin ignores the sworn testimony of

Ethan J. Pease, a box truck delivery driver

subcontracted to the U.S. Postal Service (“USPS”) to

deliver truckloads of mail-in ballots to the sorting

center in Madison, WI, who testified that USPS

employees were backdating ballots received after

November 3, 2020. Compl. ¶127. (App. 149a-151a).

Further, Pease testified how a senior USPS employee

told him on November 4, 2020 that “An order came

down from the Wisconsin/Illinois Chapter of the

Postal Service that 100,000 ballots” had been

misplaced and described how the USPS dispatched

employees to “find[] ... the ballots.” Id. (App. 150a).

9

II. DEFENDANT STATES’ LEGAL

ARGUMENTS LACK MERIT.

Defendant States’ arguments that administration

of the 2020 election complied with their State election

statutes lack merit. Thus, Texas states a claim on

these issues.

A. Pennsylvania changed its deadline for

receiving ballots through judicial, not

legislative, action.

Pennsylvania argues that there actually “was no

state law violation” when the Pennsylvania Supreme

Court “temporarily modified” by three days the

statutory deadline for receiving mail-in and absentee

ballots. Pennsylvania Br. 5. Why not? Because,

according to Pennsylvania, “the state Constitution

required it.” Id. In other words, Pennsylvania appears

to be arguing that state law is not really changed if

the changing of the law is done by a state’s Supreme

Court and it asserts a basis in the state Constitution

for doing so. Aside from the obviously tortured

reasoning of this argument, there are three additional

problems with Pennsylvania’s argument.

First, the Electors Clause does not contain a

proviso permitting judicial modification of the state

legislature’s manner for appointing Presidential

Electors. A State’s Electors are to be appointed “in

such Manner as the Legislature thereof may direct.”

U.S. Const, art. II, § 1, cl. 2. “[T]he state legislature’s

power to select the manner for appointing electors is

plenary.” Bush v. Gore, 531 U.S. 98, 104 (2000) (“Bush

II”). A precursor to Pennsylvania’s argument was

addressed by Justice Rehnquist in Bush II, when he

pointed out that the Elector’s Clause did not permit

10

the Florida Supreme Court to modify the plain terms

of Florida law. He acknowledged this Court’s general

deference to state courts in interpreting state law.

“But, with respect to a Presidential election, the

[state] court must be both mindful of the legislature’s

role under Article II in choosing the manner of

appointing electors and deferential to those bodies

expressly empowered by the legislature to carry out

its constitutional mandate.” Id. at 114 (Rehnquist,

C.J., concurring). As he observed, “This inquiry does

not imply a disrespect for state courts but rather a

respect for the constitutionally prescribed role of state

legislatures.” Id. at 115 (emphasis in original).

Because the state court “significantly departed from

the statutory framework,” its holding could not stand.

Id. at 122. In the instant case, the Pennsylvania

legislature’s statutory deadline was expressed in

unmistakably plain terms: “a completed absentee

ballot must be received in the office of the county

board of elections no later than eight o’clock P.M. on

the day of the primary or election.” 25 P.S. § 3146.6(c).

The Pennsylvania Supreme Court’s addition of three

days after the election was a direct and significant

departure from the statutory framework.

Second, the fact that the Pennsylvania Supreme

Court purported to modify this clear statutory

deadline by relying on the Pennsylvania Constitution

is of no moment here. The court did not rely on

anything in the Pennsylvania Constitution specific to

the deadline for receiving absentee ballots. Instead,

the court relied on the generally-worded edict that

“Elections shall be free and equal.” Pa. Const. art. I, §

5, cl. 1; Democratic Party v. Boockvar, 238 A.3d 345

11

(Pa. 2020). It is a stretch to find a conflict between a

statutory deadline that is applied equally to all

absentee ballots and a constitutional mandate that

elections be equal. But even if there were such a

conflict, a state constitution cannot deprive a state

legislature of its authority under the federal

Constitution to direct the manner in which Electors

shall be appointed. U.S. Const. art. II, § 1, cl. 2. The

Supremacy Clause makes clear that the U.S.

Constitution is the “supreme Law of the Land … any

Thing in the Constitution or Laws of any State to the

Contrary notwithstanding.” U.S. Const. art. VI

(emphasis added).

Third, the only case support offered by

Pennsylvania for its strained argument is Arizona

State Legislature v. Arizona Indep. Redistricting

Comm’n, 576 U.S. 787, 817-18 (2015). Pennsylvania

Br. 5. However, that case is inapposite, as it concerned

the Elections Clause of Article I, not the Electors

Clause of Article II. Moreover, the question in that

case was whether the state could by citizen’s initiative

assign redistricting to a commission. The Court

concluded, “We resist reading the Elections Clause to

single out federal elections as the one area in which

States may not use citizen initiatives as an alternative

legislative process.” Id. at 817. Clearly, the decisions

of the Pennsylvania Supreme Court cannot be

described as “alternative legislative process.” For all

of these reasons, Pennsylvania’s argument must fail.

12

B. Pennsylvania cannot ignore the express

terms of state law concerning

signatures.

With respect to Pennsylvania’s non-legislative

changes to the signature requirements of state law,

the Pennsylvania Brief bends the meaning of words to

the breaking point. Pennsylvania asserts that “the

alleged violations of state law were not, in fact,

violations.” Pennsylvania Br. 19. Pennsylvania then

follows that assertion with the claim: “An analysis of

a voter’s signature is not permitted by state law.” Id.

(with a “see” citation to In re Nov. 3, 2020 Elections,

2020 WL 652803 at *12). These dissembling

statements completely misrepresent what the text of

Pennsylvania law says.

The words of Pennsylvania law are clear: “The

application of any qualified elector … for an official

absentee ballot in any primary or election shall be

signed by the applicant….” 25 P.S. § 3146.2(d).

“Signature required. Except as provided in

subsection (d), the application of a qualified elector

under section 1301-D for an official mail-in ballot in

any primary or election shall be signed by the

applicant.” 25 P.S. § 3150.12. 25 P.S. §§ 3146.6(a) and

3150.16(a) require a voter submitting an absentee or

mail-in ballot to “fill out and sign the declaration”

printed on the ballot return envelope. The signed

declaration on the envelope of each ballot must be

verified: “When the county board meets to pre-canvass

or canvass absentee ballots and mail-in ballots … the

board shall examine the declaration on the envelope

of each ballot not set aside under subsection (d) and

shall compare the information thereon with that

13

contained in the ‘Registered Absentee and Mail-in

Voters File,’ the absentee voters’ list and/or the

‘Military Veterans and Emergency Civilians Absentee

Voters File,’ whichever is applicable.” 25 P.S. § 3146.8.

Finally, signatures at the polling place must also be

verified, according to Pennsylvania law: “Such

election officer … shall compare the elector’s

signature on his voter’s certificate with his signature

in the district register.” 25 P.S. § 3050(a.3)(2).

Pennsylvania does not deny that on September

11, 2020, the Pennsylvania Secretary of State quickly

settled with the League of Women Voters of

Pennsylvania, which had filed a complaint a month

earlier seeking “a declaratory judgment that

Pennsylvania’s existing signature verification

procedures for mail-in voting” were unlawful. League

of Women Voters of Pennsylvania v. Boockvar, No.

2:20-cv-03850-PBT (E.D. Pa. Aug. 7, 2020). The

League of Women Voters did not have the same

difficulty seeing the “existing signature verification

procedures” that now seems to afflict Pennsylvania. In

any event, the Secretary of State was willing to do

away with such verification procedures. This sue-and-

settle arrangement eliminated any signature

verification requirement regarding absentee or mail-

in ballots. It also constituted a non-legislative change

to the rules for appointing Presidential Electors in

Pennsylvania.

In subsequent litigation before the Pennsylvania

Supreme Court, the Pennsylvania Secretary of State

took the position that the signature verification

requirement with respect to absentee or mail-in

ballots was not explicit enough in state law. The court

14

agreed, effectively ratifying the Secretary of State’s

September declaration eliminating such

requirements. According to the court, although a

signature was required, it need not be verified. See In

re November 3, 2020 Gen. Election, 2020 WL 6252803

(Oct. 3, 2020). Thus, the judicial branch agreed with

the sue-and-settle revision of the law made by the

executive branch. But the legislative branch never

assented to such changes. As the Amicus Brief of

seventy Members of the Pennsylvania General

Assembly maintains, the “legislative prerogative to

determine the times, places and manner of conducting

elections has been usurped by officials from other

branches of state government…” Penn. Gen.

Assembly Members’ Amicus Br. 7. This usurpation

violates the Electors Clause of the United States

Constitution, regardless of whether or not it has the

blessing of Pennsylvania’s judicial branch.

C. The Michigan Secretary of State

violated state statute when she mailed

absentee ballot applications.

Michigan argues that, even though Michigan law

provides for only three methods by which a voter may

receive an absent voter ballot application, M.C.L. §

168.759(3), and even though “the clerk of the city or

township” is the only government official empowered

by the statute to send an unrequested application,

M.C.L. § 168.759(3)(b), nevertheless the Michigan

Secretary of State possesses unwritten authority

under state law to mail absent voter ballot

applications to every registered voter in the State.

Michigan Br. 6-7. In support of this argument,

Michigan cites the majority opinion of a divided

15

Michigan Court of Appeals panel. Id. at 6, citing Davis

v. Secretary of State, 2020 WL 5552822 at *6 (Sept.

2020). Michigan’s argument falls short, for three

reasons.

First, as Michigan acknowledges, the cited case is

currently on appeal to the Michigan Supreme Court.

Case No. 162007; Michigan Br. 6. It is far from a

settled interpretation of Michigan law recognized by

the high court of that State. The unusual

interpretation of Michigan law offered by the lower

court, which was the subject of a dissent, cannot be

relied upon by this Court, as it will not be the final

opinion on the matter offered by the Michigan

judiciary.

Second, this Court must itself look to the plain

phrasing of the text of Michigan law. It is clear that in

a statute such as M.C.L. § 168.759, which expressly

lists those mechanisms by which a voter can receive

an absent voter ballot application, the canon of

expressio unius est exclusio alterius applies. This

interpretive canon, which was appropriately applied

by the dissenting judge in the Michigan Court of

Appeals, holds that the listing of one or more things

in a statute must be understood to exclude those

things not listed. As this Court has explained, “the

canon expressio unius est exclusio alterius does not

apply to every statutory listing or grouping; it has

force only when the items expressed are members of

an ‘associated group or series,’ justifying the inference

that items not mentioned were excluded by deliberate

choice, not inadvertence.” Barnhart v. Peabody Coal

Co., 537 U.S. 149, 168 (2003). That is certainly the

case here. Three associated mechanisms for receiving

16

an absent voter ballot application are listed. M.C.L. §

168.759(3)(b). The Secretary of State is plainly not

listed in M.C.L. § 168.759(3)(b), which gives exclusive

authority to the clerks of the cities and townships of

Michigan to mail out absent voter applications. That

authority was provided only to the clerks for good

reason: they are the officials entrusted with the

authority to send out and process absent voter ballots,

M.C.L. § 168.759(2), (4)-(5); they are the officials

entrusted with the authority to provide notice of

Michigan elections, M.C.L. § 78.21(1); and they are

entrusted with the duty of “keep[ing] safeguarded all

official ballots for absent voters’ use.” M.C.L. §

168.715. This is consistent with the practice of most

states, which entrust solely to county or municipal

clerks the authority to manage the mail-in voting

process. See, e.g., K.S.A. 25-1120 (Kansas county

election officers given authority to oversee advance

voting ballots and envelopes).

Third, neither the statutes of Michigan nor the

Michigan Constitution provides sweeping authority to

the Secretary of State to do whatever she deems

appropriate in overseeing the State’s elections.

Rather, the Secretary of State is a single executive

heading a principal department; accordingly, the

Secretary of State shall “perform duties prescribed by

law.” Const 1963, art 5, § 9. The laws of Michigan do

not anywhere prescribe the duty of mailing absent

voter ballot applications to the Secretary of State. On

the contrary, that duty is prescribed only to the clerks

of the cities and townships. M.C.L. § 168.759(3)(b).

For these reasons, Michigan’s argument is contrary to

17

the plain meaning of the text of Michigan law and

must be rejected.

D. Georgia abrogated its statutes.

Georgia claims that measures taken by its state

and local election officials “complied with Georgia

law.” Georgia Br. 3. But later, Georgia admits that it

did not comply with at least one Georgia law, falsely

asserting that it needed to allow for the processing of

absentee ballots before election day because “there

was a significant risk that the ballots could not be

processed quickly enough on election day to meet

other statutory requirements in a timely manner.” Id.

at 25. Georgia, however, never mentions what those

supposed “other statutory requirements” were.

Even if we assume they were referring to

provisions like that contained in Ga. Code Ann. § 21-

2-493—that the Superintendent of elections shall

“publicly commence the computation and canvassing

of the returns at or before 12:00 Noon on the day

following the … election,” Georgia fails to explain how

the statutory authority “To employ such assistants as

may be necessary,” Ga. Code Ann. § 21-2-31, would

not make it possible to comply with both statutory

provisions. Instead, the Secretary of State simply

issued a directive, State Rule 183-1-14-0.9-.15, to

allow absentee ballots to begin to be processed three

weeks before election day, in violation of unambiguous

state law that forbids such processing until “after the

opening of the polls” on election day. O.C.G.A. § 21-2-

386(a)(2).

That provision only allows the “outer envelope” to

be “opened” after the polls have been opened, and it

forbids even the removing of the contents (i.e., the

18

inner envelope containing the ballot) or the opening of

the inner ballot envelope. Id. The next subsection does

allow a county election superintendent the discretion

to open the inner envelopes and begin tabulating

absentee votes “after 7:00 a.m. on the day of the …

election,” but only with seven days’ notice, and even

then no results can be disclosed until after 7:00 p.m.

on election day. O.C.G.A. § 21-2-386(a)(3), (5).

Georgia’s claim that this alteration of the prohibition

on processing absentee ballots prior to election day

“was entirely within the scope of [election officials’]

delegated authority [under O.C.G.A. § 21-2-31(10)] to

determine that it would be more ‘fair, legal, and

orderly’ to permit early processing” is simply false.

The provision Georgia relies on includes the

requirement, omitted by Georgia in its brief, that any

such action be “consistent with law.” Id. And its claim

that another statute, O.C.G.A. § 21-2-386, allows the

election boards “to preliminarily review absentee

ballots before Election Day,” is a disingenuous sleight-

of-hand. The only thing allowed before election day

under that statute is the mandate that county

registrars comply with Georgia’s requirement to

validate the voter’s registration information and

signature on the outer envelope upon receipt, § 21-2-

386(a)(1)(B). The remainder of the statute makes

clear that Registrars are not even “authorized to open

the outer envelopes” until polls open on election day.

More significantly, the Georgia Secretary of State

also altered the double signature verification

requirement for absentee ballots without legislative

approval and required a cumbersome three-person

verification process before a ballot could be rejected.

19

Compl. ¶¶ 70-72; See also President Trump’s

Complaint in Intervention at ¶ 4. Georgia law

requires that the signature on any returned absentee

ballot be compared with both the registration

signature and the signature on the application for an

absentee ballot. See O.C.G.A. § 21-2-386(a)(1)(B)

(“Upon receipt of each ballot, … [t]he registrar or clerk

… shall compare the signature or mark on the oath

with the signature or mark on the absentee elector's

voter registration card … and application for absentee

ballot”) (emphasis added). Yet the Secretary agreed in

March 2020 to a settlement that allowed absentee

ballots to be deemed invalid only if the signature did

not match “any of the voter’s signatures on file in eNet

[the voter registration system] or on the ballot

absentee application.” Compromise Settlement

Agreement and Release, Democratic Party of Georgia,

et al. v. Raffensperger, et al., Civil Action No. 1:19-cv-

5028-WMR (N.D. Ga. Mar 6, 2020).

In other words, the Settlement agreed to by the

Secretary of State, without approval from the State

legislature, allowed for an absentee ballot to be

deemed valid if the signature matched only the

signature on the absentee ballot application, thus

removing a significant statutory check against the

fraudulent application for and then voting of absentee

ballots in the name of someone else. Testimony

provided to the Georgia Legislature by University of

Georgia Student Grace Lemon, backed up by a sworn

affidavit, demonstrated that the Legislature’s concern

about this kind of fraud was not merely speculative; it

happened. She was advised when she went to the polls

in Fulton County that someone had applied for and

20

voted an absentee ballot in her name. See

https://www.youtube.com/watch?v=hRCXUNOwOjw

(beginning at 3:17:17).

In sum, Georgia’s claim that “the State and its

officers have implemented and followed” the laws

enacted by the Legislature is false, but at least

Georgia acknowledges in its brief that it is the

Legislature that has “plenary authority over voting

procedures.” Georgia Br. at 11; see also id. at 12 (citing

McPherson, 146 U.S. at 35). Neither Texas nor

Plaintiff in Intervention Donald Trump seeks to usurp

the Georgia Legislature’s plenary authority; they

merely ask this Court to uphold that plenary

authority against violations by non-legislative

officials that have resulted in an illegal and

unconstitutional election certification, to the

detriment of the electoral votes legally certified in

states such as Texas, and the even greater detriment

to the Plaintiff in Intervention.

E. Wisconsin abrogated its statutes.

Wisconsin attempts to deflect the Electors Clause

claim by invoking federalism, citing Shipley v.

Chicago Bd. of Election Comm’rs, 947 F.3d 1056, 1062

(7th Cir. 2020), and other circuit cases having nothing

to do with the state legislatures’ prerogative under

Article II to define the method of appointing

Presidential Electors. Wisc. Br. 20. Without any

relevant case support, Wisconsin declares that

Plaintiff’s plain reading of the Electors Clause would

“swallow” a “fundamental rule of federalism.” Id. at

20. However, as noted supra, Chief Justice Rehnquist

pointed out twenty years ago that such attempts to

cloak violations of the Electors Clause in the garments

21

of federalism are incorrect. Enforcing the Electors

Clause “does not imply a disrespect for state courts

but rather a respect for the constitutionally prescribed

role of state legislatures.” Bush II, 531 U.S. at 115

(Rehnquist, C.J., concurring) (emphasis in original).

Aware that Chief Justice Rehnquist’s analysis of

the Electors Clause deflates its federalism argument,

Wisconsin resorts to dismissing the Rehnquist

concurrence: “that opinion did not garner a majority

and thus has no precedential effect.” Wisc. Br. 23. It

may not have precedential effect; but it certainly has

persuasive effect. And Wisconsin offers no rebuttal to

Chief Justice Rehnquist’s reasoning.

Instead, Wisconsin takes an unusual course in its

Brief. Wisconsin does not deny Plaintiff’s contention

that executive and judicial actors modified the express

requirements of state law as laid out in Plaintiff’s

Complaint. Rather, Wisconsin claims that the State

legislature implicitly agreed to have its rules for the

appointing of Presidential Electors changed by the

executive and judicial branches. This agreement is

found nowhere in state law. Rather it comes from the

penumbras and emanations of having three branches

of government.

According to Wisconsin, it is simply “axiomatic”

that “executive branch officials, in order to carry out

their constitutional function of executing statutes,

necessarily must interpret the meaning of those

statutes and must exercise executive judgment.” Wisc.

Br. 25. By “interpret” Wisconsin evidently means

“change the meaning of.” And Wisconsin claims it is

“equally axiomatic … that the executive branch’s

interpretation and application of state statutes in

22

particular situations are subject to review by the

judicial branch.” Id. 26. In other words, according to

Wisconsin, by being part of this three-branches-of-

government arrangement, the legislature conceded

the power to modify statutes to the other two

branches. Under this theory, Electors Clause

violations would never occur, because every change

wrought by the judiciary or the executive branch

always has the implicit approval of the legislative

branch. Such a view would render meaningless the

grant of authority to state legislatures in the Electors

Clause.

Wisconsin also argues that the fact that Wis. Stat.

§ 6.87(4)(b)1 permits absentee ballots to be returned

through “deliver[y] in person, to the municipal clerk”

demonstrates that drop boxes are legal under

Wisconsin law. Not so. The plain statutory language

cited by Wisconsin by its own terms renders the use of

unmanned drop boxes per se illegal under Wisconsin

law. Compl. ¶¶ 110-14. Similarly, Wisconsin’s

argument that the Wisconsin Supreme Court

“approved” of certain officials unilaterally expanding

the definition “indefinitely confined” to include every

voter due to COVID-19 is absurd. Wisc. Br. 30-31;

Compl. ¶¶ 115-22. In fact, the Supreme Court rejected

the unlawful expansion of “indefinitely confined”—

which does away with Wisconsin’s signature

verification and photo identification requirements.

Compl. ¶ 119.

III. THIS CASE WARRANTS SUMMARY

DISPOSITION OR EXPEDITED BRIEFING.

Although Defendant States dispute that the Court

should hear this action in its discretion and dispute

23

the laws and facts, Defendant States offer no reason

against deciding this action summarily if the Court

rules for Texas on the facts and law.

CONCLUSION

Leave to file the Bill of Complaint should be

granted.

24

December 11, 2020


Ken Paxton

Counsel of Record


Brent Webster


General of Texas

Kurt B. Olson

Lawrence Joseph



Grant Dorfman



Aaron Reitz


Legal Strategy


Chief of Staff

Austin Kinghorn

General Counsel


P.O. Box 12548 (MC 059)

Austin, TX 78711-2548

[email protected]

(512) 936-1414

Supplemental Declaration of Charles J.

Cicchetti, Ph.D.

1. I am the same Person who filed a declaration

previously in this Matter. I am responding to three

specific responses to my initial declaration in the

Defendants’ Opposition to Motions in the Matter No.

220115.

Early Tabulations

2. Defendants refer to my earlier Declaration

where I report anomalous differences between

tabulated ballots before 3 AM EST and subsequent

tabulations. Pennsylvania misstates what I say and

calls my analysis “nonsense” on page 6 of their Brief.

This is what I actually said:

There is a one in many more than quadrillions

of chances that these two tabulation periods

are randomly drawn from the same

population. Therefore, the reported

tabulations in the early and subsequent

periods could not remotely plausibly be

random samples from the same population of

all Georgia ballots tabulated. This result was

not expected because the tabulations reported

at 3 AM EST represented almost 95% of the

final tally, which makes a finding of similarity

for random selections likely and not

statistically implausible.

Put another way, for the outcome to change,

the additional ballots counted would need to

be much different than the earlier sample

tabulated. Location and types of ballots in the

subsequent counts had, in effect, to be from

entirely different populations, the early and

152a

subsequent periods, and not random

selections from the same population. These

very different tabulations also suggest the

strong need to determine why the outcome

changed. I am aware of anecdotal statements

from election night that some Democrat

strongholds were yet to be tabulated. There

was also some speculation that the yet-to-be

counted ballots were likely absentee mail-in

ballots. Either could cause the latter ballots to

be non-randomly different than the nearly

95% of ballots counted by 3AM EST, but I am

not aware of any actual data supporting that

either of these events occurred. However,

given the closeness of the vote in Georgia,

12,670 votes, further investigation and audits

should be pursued before finalizing the

outcome. (Initial Cicchetti Declaration,

paragraph 16, page 5 of 10.)

3. Pennsylvania’s Brief states at page 7 of that:

But the votes counted later were indisputably not “randomly drawn” from the same population of votes, as those counted earlier were predominantly in-person votes while those counted later were predominantly mail-in votes.

I noted that possibility in my Initial Declaration.

Specifically, I tested the hypothesis that the vote

probability for major party candidates (vote

propensity vote rate) differed in early and late period.

I concluded that it does from the large z score. This

analysis did not attempt to speculate about why there

was a difference—though I expressly noted possible

unverified anecdotal explanations described above.

Because these anecdotal explanations are not verified,

153a

they are not included in my statistical analysis. The

vote patterns I analyzed were different and I ascribe

the likelihood of finding such patterns from the same

population with the same rate of vote propensity as

vanishingly small, just as it would be very unlikely to

get many heads in coin tossing followed by many tails.

My conclusion was simply that there were significant

differences in the four battleground states. I conclude

more narrowly that what happened in the four

battleground states and when it happened should not

be dismissed as coincidence.

The Pennsylvania Brief actually repeats what I observed “could” be an explanation related to the types of ballots and location, but the authors do not offer any data or supporting facts that explain what “might” have happened and why. I continue to recommend that more investigations and ballot audits are necessary before the unusual and yet similar differences across all four states could have occurred coincidentally.

Indeed, my belief as to unusual statistical anomaly of Biden’s win in these States, individually or collectively, is reinforced by my subsequent analyses, described below.

Clinton Compared to Biden Among Urban

Voters

4. Pennsylvania’s Motion also avers on page 8

that my analysis of the Clinton and Biden

performances are “worthless” because comparisons of

“successive elections” are “worthless”.

This what I said:

I continue to find with very great confidence

that I can reject the hypothesis that the

percentages of the votes Clinton and Biden

achieved in the respective elections are

154a

similar. The estimated Z-score is 108.7. The

confidence for rejecting the hypothesis

remains many times more than one in a

quadrillion.4

There are many possible reasons why people

vote for different candidates. However, I find

the increase of Biden over Clinton is

statistically incredible if the outcomes were

based on similar populations of voters

supporting the two Democrat candidates. The

statistical differences are so great, this raises

important questions about changes in how

ballots were accepted in 2020 when they

would be found to be invalid and rejected in

prior elections.

Subsequent to filing my initial declaration, I read

reports concerning urban percentage vote that made

me look for other data. I was particularly interested

in reports that Clinton performed better in urban

areas than Biden, despite his winning more total

votes. I investigated further and found some reasons

why I am glad I urged a need for further inquiry in

my initial declaration.

5. In 2016 limited to the major-party candidates

Clinton had 51% of all the votes nationally compared

to Trump’s 49%. She won in counties with large urban

areas with a much larger percent than Trump. Her

share of the votes in counties where the Top-50 cities

are located was 67.8% compared to Trump’s 32.2%.

6. Biden did not do as well as relative to Clinton

in 2020 the counties. He had a lead in the Top-50

cities of 66.4% compared to Trump’s 33.6% ignoring

third part shares. The difference in Democrat vote

155a

percentage between 2020 and 2016 is a loss of 1.4%

from Biden compared to Clinton.

7. I used a multivariate regression analysis for

the votes cast in every county in the USA in both 2016

and 2020. I found that Trump performed much better

among Hispanic and African American voters in 2020

than in 2016. This cut Biden’s urban vote share in

2020 relative to Clinton in 2016. While Biden still won

these urban counties, he underperformed Clinton.

8. I separately analyzed Biden and Clinton’s vote

shares in the five major cities in the four battleground

states of Georgia, Michigan, Pennsylvania, and

Wisconsin. I found the comparison to be contrary to

the national comparison results where Clinton had

higher percentages that Biden in the Top-50 urban

counties. I removed the four battleground states for

the Top-50 cities and the loss in Democrat vote

percentages is 1.4%, with Clinton getting 67.8% and

Biden getting 66.4%. In four of the five most populous

counties for the cities in these four states, Biden had

higher percentages than Clinton when all major and

minor party candidates are included. Biden won:

a. Fulton County, GA (Atlanta) 72.6% compared

to 68.9% for Clinton , or by 3.7% more.

b. Wayne County, MI (Detroit) 68.5% compared to

66.8% for Clinton, or 1.7% more.

c. Allegheny, PA (Pittsburgh) 59.7% compared to

56.5% for Clinton, or 3.2% more.

d. Milwaukee, WI (Milwaukee) 69.4% compared

to 65.6% for Clinton, or 3.8% more.

e. Philadelphia, PA was the exception where

Biden had a very high 81.4% compared to an even

higher percentage of 82.5% for Clinton, or 1.1% less.

156a

9. Biden’s votes did not perform as well as Clinton

in the larger urban areas nationally because while

still winning among Hispanics and African Americans

he lost ground to Trump when compared to Clinton.

However, he performed better in the major urban

counties in the four battleground states. The

Pennsylvania Brief credits efforts to get out the vote,

but offers no data or facts to support its claim. Biden’s

win in these urban areas in the four battleground

states is also consistent with any efforts to count

votes that would otherwise have been rejected or

otherwise not be valid. Maybe, there was some of

both. The conflicting results in battleground urban

counties is unusual and justifies further investigation

to determine how Biden gained in four out of five

major urban areas in the four battleground states

compared to his somewhat weaker relative

performance in the Top-50 urban areas in the Country

compared the Clinton’s in 2016.

10. Biden did not perform as well in

combined Top-50 urban areas than Clinton did in

2016 because Trump gained bigger percentage shares

from Hispanics and African Americans. In contrast,

Biden actually had higher percentages in four of the

five urban centers in the four battleground states of

Georgia, Michigan, Pennsylvania and Wisconsin. I

think the unusual fact pattern deserves more

scrutiny.

11. Coincidences are possible, but relying on

them is questionable. Analyzing data and stubborn

facts are a better way to determine what we observe.

The facts show that while Biden had more ballots in

urban areas than Clinton, she outperformed him in

terms of the percentage of the vote she received.

Further analyses shows that she had more Hispanic

157a

and African American support with less votes being

cast in 2016.

12. Contrary to the dismissal that the

results are “worthless” in the Pennsylvania Motion

(page 8), it is worthwhile to understand that in the

battleground states comprised of the four defendants

that in four of the five urban areas Biden had higher

percentages than Clinton. This result is surprising

given the Trump national gains in support from

Hispanics and African Americans. This contrary

observation supports further investigation to

determine what happened and why. This would not be

a worthless outcome.

Georgia Rejection Rates

13. Georgia’s Brief in opposition discusses

the finding in my declaration that the 2020 rejection

rate in Georgia was “seventeen times greater” in the

presidential election in 2016 compared to 2020.

(Initial Cicchetti Declaration, paragraph 24, page 7 of

10). I also explained that more than six-times as

many mail-in ballots were used in 2020, which

suggests other things being the same there would be

more rejections due to increased use of mail-in ballots

by so many voters in Georgia.

14. Georgia’s Brief suggests other things

were not the same because of “extensive public and

private educational efforts regarding voting

procedures” (Georgia Br. Statement 1, page 5).

Georgia does not provide any data or analysis for this

statement. Instead, Georgia refers indirectly to an

Affidavit from Chris Harvey, cited in a district court

opinion, who discusses 2018 rejections relying on data

from a third party source. Georgia Br. 4. In his

affidavit, Harvey in turn cites Democratic party of

158a

Georgia et al. v. Raffensperger, Civil Action No.1:19-

cv-5028-WMR, First Amended Complaint,

paragraphs 2 through 4, for unverified data

15. Presidential elections, as in 2016 and

2020, are not necessarily the same as general

elections like 2018. In my analysis I focused

exclusively on mail-in ballot rejections, not all

absentee ballots that Mr. Harvey discusses. I use

county data for mail-in ballots from the U.S Election

Assistance Commission’s Election Administration

and Voting Survey (EAVS) for 2016 and 2018. For

2020 I use Secretary of State data. I find the data

leads to very different results and conclusions than

Mr. Harvey reports, which the Georgia Brief uses.

15. Specifically, Mr. Harvey states that “The

rejection rate of absentee ballots with missing or not

matching signatures in the 2020 General Election was

0.15%, the same rejection rate for signature issues as

the 2018 General Election.” (Harvey Affidavit,

paragraph 6, page 5.) This claimed similarity that Mr.

Harvey avers does not match what I find.

16. Therefore, I analyzed rejection for the

data I cite for just “mail-in ballots” for Georgia

counties in 2018 to hypothetically test Harvey’s

proposed use of 2018 data (which I still believe is not

appropriate as it is a non-presidential election year)—

and applied the 2018 county data for Georgia for mail-

in ballots as I did for 2016 in my initial declaration.

(Mail-in ballots are not the same as absentee ballots.

Mail-in ballots are a distinct category of ballots apart

from absentee ballots because they can be used on

election day and dropped-off early in Georgia.) I find

in 2018, there were 218,858 mail-in ballots counted

and 7,512 mail-in ballots rejected. The corresponding

159a

rejection rate for all mail-in ballots in 2018 in Georgia

was more than 3.32%, and in counties that Biden won

the rejection rate exceeded 3.70% and in 2020 Trump

counties it was 2.73%. The rejection rate for mail-in

ballots in the EAVS 2018 data is more than twenty

times the rate for absentee ballots of .15% the Mr.

Harvey reported and the Georgia brief used.

18. For 2020, I use rejection rates for the

counties in Georgia based on Secretary of State data.

In my initial declaration, I explained that there would

be 83,517 fewer tabulated ballots, if the EAVS mail-

in ballot rejection rate of 6.42% in 2016 was applied to

the 2020 mail-in ballots. If I apply the EAVS 2018

mail-in ballot rejection rate of 3.32%, there would be

38,937 fewer ballots and disproportionately more

would be for mail-in ballots in counties that Biden

won in 2020. Biden’s has a slim margin, less than the

12,670 that I used in my initial declaration.

19. Mr. Harvey uses absentee ballots, and he

is not reporting results or data related to mail-in

ballot rejections. He offers no specific reasons why a

non-presidential election year 2018 comparator

should be used rather than the last presidential

election. Mr. Harvey’s Affidavit cites third party data

from a complaint filed in previous litigation and does

not use the widely used EAVS data from the U.S.

Election Assistance Commission. Mr. Harvey

obfuscates the very sharp reduction in 2020 mail-in

ballot rejections relative to both 2018 and 2020, which

I think is a better comparator. The accumulated

effects are very problematic when so many more mail-

in votes, seventeen times more than 2016 and six

times more than 2018, were mailed-in and counted in

2020.

160a

Conclusions

20. I stand by my conclusions form my prior

declaration. The subsequent explanation of my use of

the widely accepted Z-score is intended to focus on

what I said and concluded with respect to the highly

improbable differences between the earlier

tabulations before 3 AM EST the morning after the

election and subsequently in the four battleground

states. Things were very different in terms of the

propensity of votes for Biden and the change in the

reported outcome. These changes were not simply

coincidences. Therefore, I continue to recommend

that further investigations and audits should be done

to nearly everyone’s satisfaction.

21. In this spirit, I further analyzed data to

determine what caused Clinton to win with bigger

urban area margins in 2016 compared to Biden’s

urban voter margins in 2020. I discovered the Trump

improvements with Hispanic and African American

voters accounted for his improvement in 2020

compared to 2016 in terms of the percent of urban vote

that he won. Trump’s relative gains explain why

nationally Biden’s percentage of the urban vote fell

behind Clinton. The clarification is a national

outcome. I also found and report here that in four of

the five major urban areas in the Defendants’

battleground states that Biden had, contrary to

national results, higher margins than Clinton. This

raises additional concerns about the turn-around from

the early morning tabulations favoring Trump to the

final tabulations resulting in Biden’s win in the four

battleground states.

22. I analyzed Georgia’s response to my

analysis related to differences in rejection rates in the

161a

2020 presidential election. I previously explained

that if the 2016 rejection rate was applied to the much

greater number of mail-in ballots in 2020 that Trump

would win Georgia. In its brief, Georgia’s counters

that 2018 rejection rates should be used rather than

2016. I do not agree because presidential elections are

often different than off-year elections. Nevertheless,

I analyzed the widely used EAVS data for 2018 and

determined that any Georgia assertion was wrong

concerning nearly similar 2018 and 2020, and very

low absentee, not mail-in, rejection rates. I show that

using the EAVS data from 2018 to estimate expected

2020 mail-in rejections would translate to 38,937

additional rejected statewide mail-in ballots, which

are about three times greater than Biden’s difference

using 12,670 votes, or less.

/s/ Charles Cicchetti

Charles Cicchetti, Ph.D.

December 11, 2020

162a

AFFIDAVIT OF LISA GAGE

Lisa Gage, being sworn, declares under penalty of

perjury:

1. I am personally familiar with the facts stated

in this Affidavit and, if sworn as a wit- ness, am

competent to testify to them as well.

2. I am a registered voter in the State of Michigan.

3. I was a Republican Poll Challenger on

November 3, and November 4, 2020.

4. On November 3, 2020 I was observing at TCF

Center in Detroit Michigan.

5. I began observing the processing and counting

of absentee ballots at 7:00 am on No vember 3, 2020.

There were approximately 140 tables with five poll

workers at each table.

6. I observed several irregularities with the 20-30

tables I was able to spend time observ ing in detail.

7. I was not assigned to a specific precinct. The

first precinct table I observed only had 10 ballots. I

then moved on to another table with no GOP

Challenger present.

8. Generally, the process I observed, was that the

person that was at thee-poll computer would first scan

the bar code on the envelope with a hand-held

scanner. The voter's name, date of birth, and

registration status would appear on a computer

monitor on the table. If the voter's name did not

appear on the computer monitor, poll workers were

supposed to type in the voter's name, and if the name

did not appear, check for the voter's name on an

Absentee Voter List ("AV List"). The AV List would

include vot ers who registered and voted on Monday

and Tuesday, election day.

163a

9. After checking that information, the envelope

was to be passed to another person who separated the

envelope from the secrecy envelope that contained the

ballot.

10. The next person would take the ballot

out of the secrecy envelope and pass the ballot to the

next worker who would roll it to flatten it, tear off the

perforated stub with the ballot number, and then put

the ballot into a box identified as the "tabulation box"

with other processed ballots that was then taken to a

tabulator when the box had up to 50 ballots. I would

estimate that I saw thousands of ballots placed in the

tabulation box during the time I worked at the TCF.

11. There was no signature comparison

being conducted on absentee ballots. There were

stacks of ballots in "post office" bins in their envelopes,

on tables identified by precinct number.

12. Between 9:00 and 9:30 am, I asked a

supervisor about signature comparison for the ballots

currently on the table. She was a slightly overweight,

African-American woman with shoulder length hair.

She wore one of the white shirts with an election

insignia on the shirt. As with all other election

workers, she did not have a name tag. This supervisor

told me "that was done somewhere else".

13. A poll worker said "we have 10 ballots,

just like yesterday (meaning Monday)". When I heard

this, I approached a supervisor because I thought it

was unusual that there would be just 10 on one day

and then just 10 the next day. The supervisor told me

that they had ballots on Tuesday that they had

"partially processed on Monday." This supervisor

wore a white shirt with election insignia and no name

tag, but was a different supervisor identified in

164a

paragraph 11. With these repeat ballots, the poll

workers followed the 5 step process outlined above.

14. Later that morning approximately

between 11:45am and 12:30pm, a third supervisor

announced that they "needed to catch up". This

supervisor was tall, approximately 5'9" average build,

late 40', early 50-ish, short hair, African-American

woman. She also wore the white shirt with election

insignia with no name tag. At this point the ballots

were just divided up between each of the poll worker

at the table who opened envelopes, pulled the stub and

put the ballots in the tabulator box. The entire 5 step

process was entirely abandoned. There was no

scanning of the outside of the envelope to check for

registration status, there was no signature, or ballot

number verification.

15. There was no post mark verification ;

there was no ballot review for stray marks; there was

no verification of the voter existing in the data base;

there was no signature com parison or

authentication.

16. I estimate that thousands ballots were

processed this way.

17. None of the outer envelopes that I

observed, included any additional written state

ments or stamps in addition to the signature, and if

there had been I would have no ticed them. I estimate

these outer envelopes that I was able to see to be at

least several hundred to a thousand.

18. These non-verified ballots were then

placed in a box and then a separate worker took the

box to the tabulator, without any review.

165a

19. As a challenger I was prohibited from

observing the postmarks. I was told many times by a

supervisor that I had to "stand away".

20. As a challenger I was prohibited from

observing the ballot duplication process by poll

workers moving in front of me to block me from

watching the duplication process. Poll works are

supposed to have three people involved in the

duplication process: a Democrat, a Republican, and an

independent observing the process. One of the three

would mark the duplicate ballot, while another person

called out the selections.

21. Once the duplicate was made, the poll

workers deposited the original into an envelope,

marked 'Originals'. As poll challengers were not able

to see what happened to the en velope. I asked a

Supervisor as to the disposition of the originals, and

was told the originals envelope will stay in the

supplies box. Having observed other challengers being

escorted out of the site, and the noticeable disgust at

my asking questions, I felt that too much inquiry

could result into dismissal from the site.

22. Over the course of the day, I changed my

tactic and would ask a variety of supervisors a

question instead of multiple questions to any one or

two supervisors. I left the TCF Center on November 3,

2020 mid-afternoon as it appeared no more ballots

were com ing in. Contributing to my decision to leave

was that GOP challengers were denied the ability to

sit in unoccupied chairs by either poll workers or

supervisors. We were not allowed to pull chairs away

from the table; we were not permitted to leave to get

food and were told by republican resources that if we

left we would not be able to re turn. Other GOP

166a

challengers and myself observed Democrat

challengers sit at the ta bles with the poll workers.

We were not even permitted to place a water bottle on

an unused comer of the tables. We were left to juggle

water bottles pens, note papers and other documents,

making note taking difficult.

23. On November 4, 2020, I returned to TCF

at 6:30am.

24. I returned to the same general area I had

been on the day before. I started observing four tables

but eventually observed many different tables.

25. I observed incomplete and inconsistent

E-poll documentation, table to table.

26. The E-poll system allowed ballot

acceptance even when date of birth and/or voter reg

istration dates were suspect. For example, I observed

a voter date of birth 20 years AFTER the date of voter

registration. The poll worker simply processed the

ballot without inquiry. I tried to challenge this ballot

and was told that the ballot would go into the

"problem bin". The "problem bin" was at the table. At

various times the "problem bin" would be taken the

"bull pen" or in some cases, directly to the tabula tion

area.

27. On one occasion I witnessed two of the

ballots that I challenged, being fed through the

tabulator without adjudication. The poll worker that

processed this ballot saw me watching this process

and stared back at me with indignation.

28. I specifically observed 26 ballots that

were not verified with either e-poll or the AV list. This

list of 26 is attached. I attempted to challenge these

26 ballots, although the poll workers would not

acknowledge my challenges. The 26 ballots on this list

167a

were observed by me in the span of a few hours. There

were other ballots that I could have challenged for the

same reasons, but these 26 were the ones that I was

able to write down as the pace of processing increased.

The 26 were observed in a couple of hours at a single

table on Wednesday November 4. There were over 140

tables in the count- mg room.

29. Each of the ballots on the list of 26 I

challenged were tabulated without adjudication. It

can be observed that these ballots were sequential,

highly suggestive of fraud, due to the fact that each

clerk must assign a ballot number as the applications

for absent voter ballots arrive in the clerk's office. The

chance of the same ballots being applied for and then

returned for tabulation as the same time is remote.

30. When the military ballots came in, I

observed, all were in the E-poll system. However there

were inconsistencies between dates of birth and voter

registration on the vast majority of the ballots I

observed. For example, I observed an active duty

ballot, with a voter date of birth of 1938, with a voter

registration date of 2020.

31. I made a point to examine every military

ballot for date of birth and date of voter reg istration.

A vast majority contained dates of birth between 1938

and 1960 for active duty ballots. They had e-poll

addresses of Detroit, MI, rather than a deployment

loca tion. Also there were only a handful of "voting

locations" identified in the e-poll for approximately

100 ballots. I noticed that these same "voting

locations" would come up again and again as these

military ballots were being processed. I would

estimate this to be approximately 100 ballots at the

168a

multiple tables I was observing. There were

approximately 143 tables.

32. Of all the military ballots I observed,

none were in AV envelopes. There were less than 5 in

larger manila envelopes, the rest were in standard

white business envelopes.

33. I observed the opening of military ballots

that arrived in standard white business en velopes. I

did not see any voter signature certificates come out

of these envelopes as required by law.

34. I observed the duplication process of the

each of the military ballots onto the machine readable

ballot forms. The original, 8/5xl1 papers were put back

in their mailing en velopes and placed in the originals

envelope.

35. During a time when there was no

activity, I observed that the system clock time on the

screen saver on the E-poll system monitors varied by

up to 5 hours, thereby rendering inability to verify

date and time stamp for data verification later. This

would make it easy for ballots to be excluded if a

review was time specific.

36. I also experienced attempts at

intimidation. When I began challenging ballots I was

approached by individuals identifying as from the

NAACP or a "civil rights group" accusing me of acting

in "bad faith"; telling me that I was violating "civil

rights" by challenging ballots.

37. I was able to resist the intimidation but

I did observe other Republican poll chal lengers

become visibly upset by this activity. I was asked to

replaced several poll chal lengers who had become

rattled. I observed a Republican poll challenger

arrested for taking off his mask when he experienced

169a

breathing problems. The poll workers would cheer

and clap whenever a Republican poll challenged was

escorted out.

38. I was also approached by an "activists"

who inserted himself into a particular chal lenge

discussion, offering his opinion that my challenge was

in bad faith. He later identified himself as a

University of Michigan Law School student, stating

he and others decided to come to TCF to be involved.

39. Once the actual attorneys were present,

these activists moved on.

40. Other forms of intimidation were body

blocking, deprivation of chairs to sit in. Then when

Republican poll challengers left to get food or drink,

they were denied re-entry.

41. Dated: December 10, 2020

Subscribed and sworn to before me on:

/s/ Sarah C. Wood

Notary public, State of Michigan, County of: Ionia

My commission expires: 5/16/21

170a



STATE OF TEXAS,

Plaintiff,

v.


GEORGIA, STATE OF MICHIGAN, AND STATE OF

WISCONSIN,

Defendants.

REPLY IN SUPPORT OF MOTION FOR

PRELIMINARY INJUNCTION AND

TEMPORARY RESTRAINING ORDER OR, ALTERNATIVELY, FOR STAY AND

ADMINISTRATIVE STAY

Ken Paxton*


Brent Webster


General of Texas

Lawrence Joseph




P.O. Box 12548 (MC 059)

Austin, TX 78711-2548

[email protected]

(512) 936-1414

* Counsel of Record

i

TABLE OF CONTENTS

Pages

Table of Authorities .................................................... ii

Reply in Support of Interim Relief ............................ 1

Introduction ................................................................ 1

Argument .................................................................... 3

I. Texas IS likely to prevail. .................................... 3

A. Defendant States violated the Electors

Clause by modifying their legislatures’

election laws through non-legislative

action. ............................................................. 3

B. State and local administrator’s systemic

failure to follow State election law

qualifies as an unlawful amendment of

State law. ....................................................... 5

C. Defendant States’ invocation of other

litigation does not affect this action,

either substantively or jurisdictionally. ....... 5

D. Texas has standing to sue. ............................ 7

E. Neither laches nor mootness bar

injunctive relief. ............................................. 9

II. The other Winter-Hollingsworth factors

warrant interim relief. ....................................... 10

A. Plaintiff State will suffer irreparable

harm if the Defendant States’

unconstitutional presidential electors

vote in the Electoral College. ...................... 10

B. The balance of equities tips to the

Plaintiff State. ............................................. 10

C. The public interest favors interim relief. ... 11

Conclusion ................................................................ 12

ii

TABLE OF AUTHORITIES

Pages

Cases

Am. Elec. Power Co. v. Connecticut, 564 U.S. 410

(2011) ..................................................................... 7

Ariz. State Legis. v. Ariz. Indep. Redistricting

Comm'n, 576 U.S. 787 (2015) ............................... 4

Arizona v. New Mexico, 425 U.S. 794 (1976) ............. 7

Baker v. General Motors Corp., 522 U.S. 222

(1998) ..................................................................... 6

Benisek v. Lamone, 138 S.Ct. 1942 (2018)................. 9

Bodine v. Elkhart Cty. Election Bd., 788 F.2d

1270 (7th Cir. 1986) .............................................. 6

Bush v. Palm Beach Cty. Canvassing Bd., 531

U.S. 70 (2000) ........................................................ 5

Elrod v. Burns, 427 U.S. 347 (1976) .......................... 9

FEC v. Akins, 524 U.S. 11 (1998) .............................. 7

Gracey v. Grosse Pointe Farms Clerk, 182 Mich.

App. 193, 452 N.W.2d 471 (Ct. App. 1989) ........ 10

Knox v. SEIU, Local 1000, 567 U.S. 298 (2012) ........ 9

Leser v. Garnett, 258 U.S. 130 (1922) ........................ 5

Lutwak v. United States, 344 U.S. 604 (1953) .......... 8

Maryland v. Louisiana, 451 U.S. 725 (1981) ............ 7

McPherson v. Blacker, 146 U.S. 1 (1892) ................... 4

Minn. Voters All. v. Ritchie, 720 F.3d 1029 (8th

Cir. 2013) ............................................................... 6

Mississippi v. Louisiana, 506 U.S. 73 (1992) ............ 7

Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565

(1916) ..................................................................... 4

Purcell v. Gonzalez, 549 U.S. 1 (2006) ....................... 5

iii

Reynolds v. Sims, 377 U.S. 533 (1964) ...................... 8

Smiley v. Holm, 285 U.S. 355 (1932) ......................... 4

United States Term Limits v. Thornton, 514 U.S.

779 (1995) .............................................................. 5

United States v. Troup, 821 F.2d 194 (3d Cir.

1987) ...................................................................... 6

Wesberry v. Sanders, 376 U.S. 1 (1964) ..................... 8

Yick Wo v. Hopkins, 118 U.S. 356 (1886) .................. 7

Statutes

U.S. CONST. art. II, § 1, cl. 2 ....................................... 2

U.S. CONST. art. V, cl. 3 .............................................. 7

U.S. CONST. amend. XIV ............................................ 5

3 U.S.C. § 2 ........................................................... 2, 12

Ch. 37, 19 Stat. 227 (1877) ......................................... 9



STATE OF TEXAS,

Plaintiff,

v.


GEORGIA, STATE OF MICHIGAN, AND STATE OF

WISCONSIN,

Defendants.

REPLY IN SUPPORT OF INTERIM

RELIEF

The State of Texas respectfully replies in support

of its motion for interim injunctive relief against the

States of Georgia, Michigan, and Wisconsin and the

Commonwealth of Pennsylvania (collectively, the

“Defendant States”) and their agents, officers,

presidential electors, and others acting in concert.

INTRODUCTION

Defendant States do not seriously address grave

issues that Texas raises, choosing to hide behind other

court venues and decisions in which Texas could not

participate and to mischaracterize both the relief that

Texas seeks and the justification for that relief. An

injunction should issue because Defendant States

have not—and cannot—defend their actions.

First, as a legal matter, neither Texas nor its

citizens have an action in any other court for the relief

2

that Texas seeks here. Moreover, no other court could

provide relief as a practical matter. The suggestion

that Texas—or anyone else—has an adequate remedy

is specious.

Second, Texas does not ask this Court to reelect

President Trump, and Texas does not seek to

disenfranchise the majority of Defendant States’

voters. To both points, Texas asks this Court to

recognize the obvious fact that Defendant States’

maladministration of the 2020 election makes it

impossible to know which candidate garnered the

majority of lawful votes. The Court’s role is to strike

unconstitutional action and remand to the actors that

the Constitution and Congress vest with authority for

the next step. U.S. CONST. art. II, § 1, cl. 2; 3 U.S.C. §

2. Inaction would disenfranchise as many voters as

taking action allegedly would. Moreover, acting

decisively will not only put lower courts but also state

and local officials on notice that future elections must

conform to State election statutes, requiring

legislative ratification of any change prior to the

election. Far from condemning this and other courts

to perpetual litigation, action here will stanch the

flood of election-season litigation.

Third, Defendant States’ invocation of laches and

standing evinces a cavalier unseriousness about the

most cherished right in a democracy—the right to

vote. Asserting that Texas does not raise serious

issues is telling. Suggesting that Texas should have

acted sooner misses the mark—the campaign to

eviscerate state statutory ballot integrity provisions

took months to plan and carry out yet Texas has had

only weeks to detect wrongdoing, look for witnesses

3

willing to speak, and marshal admissible evidence.

Advantage to those who, for whatever reason, sought

to destroy ballot integrity protections in the selection

of our President.

On top of these threshold issues, Defendant States

do precious little to defend the merits of their actions.

This Court should issue the requested injunction.

ARGUMENT

I. TEXAS IS LIKELY TO PREVAIL.

In support of leave to file, Texas rebuts Defendant

States’ arguments that they complied with their State

law. Texas Reply in Support of Leave to File. Here,

Texas demonstrates that Texas is likely to prevail on

the merits.

A. Defendant States violated the Electors

Clause by modifying their legislatures’

election laws through non-legislative

action.

Defendant States do not credibly dispute either

that they changed election statutes via non-legislative

means or that the Electors Clause preempts such

changes. Accordingly, Texas is likely to prevail on the

merits.

Pennsylvania improperly conflates the Article I

Elections Clause with the Article II Electors Clause.

Penn. Br. 21. To state the obvious, these clauses are

in separate Articles of the Constitution. The Elections

Clause originally applied, by its terms, only to House

(and later Senate) elections, whereas the Electors

Clause applied to presidential elections. Although the

Founders understandably feared the emergence of an

all-powerful Executive based on their experience with

4

King George, they were not fearful of expanded

legislative representation, which King George had

denied them. As a result, the congressional proviso in

Article I is broad—"Congress may at any time by Law

make or alter” state determination of the times,

places, and manner of federal elections. In Article II,

however, congressional authority is limited to one

modality—"Congress may determine the Time of

chusing the Electors, and the Day on which they shall

give their Votes; which Day shall be the same

throughout the United States.” This binary is

textually significant and reflective of distinctive policy

choices made by the Founders in Article I versus

Article II.

As a corollary, state law can constrain

legislatures’ Article I powers but not their Article II

authority. Compare Penn. Br. 21 (Elections “[C]lause

does not relieve state legislatures of the obligation to

comply with their state constitutions”) (citing Ariz.

State Legis. v. Ariz. Indep. Redistricting Comm'n, 576

U.S. 787, 818 (2015) (“AIRC”)) with McPherson v.

Blacker, 146 U.S. 1, 35 (1892) (Electors Clause “power

… cannot be taken from [legislatures] or modified by

their State constitutions”) (internal quotations

omitted); cf. Smiley v. Holm, 285 U.S. 355, 367-68

(1932) (Elections Clause); Ohio ex rel. Davis v.

Hildebrant, 241 U.S. 565, 568-69 (1916) (same). State

legislatures get the authority to appoint presidential

electors from the federal Constitution, not vice versa.

Texas Mot. at 11-12. Therefore, state limits on the

state legislature exercising this federal constitutional

function cannot stand because the federal

Constitution “transcends any limitations sought to be

5

imposed by the people of a State” under this Court’s

precedents. Leser v. Garnett, 258 U.S. 130, 137 (1922);

see also Bush v. Palm Beach Cty. Canvassing Bd., 531

U.S. 70, 77 (2000); United States Term Limits v.

Thornton, 514 U.S. 779, 805 (1995) (“the power to

regulate the incidents of the federal system is not a

reserved power of the States, but rather is delegated

by the Constitution”).

The parties argue against last-minute injunctions

in election cases under Purcell v. Gonzalez, 549 U.S.

1, 4–5 (2006), but that “Purcell principle” concerns

voter confusion in advance of an election. A variant of

that principle is that unconstitutional elections

cannot stand.

B. State and local administrator’s systemic

failure to follow State election law

qualifies as an unlawful amendment of

State law.

Defendant States do not dispute that policy

decisions to ignore State election law can violate the

Electors Clause every bit as much as non-legislative

amendments to State election law. Indeed, the due

process decisions that both sides cite make that

distinction between intentional misadministration

and inadvertent error.

C. Defendant States’ invocation of other

litigation does not affect this action,

either substantively or jurisdictionally.

Defendant States’ arguments against the

Fourteenth Amendment lack merit. Texas cited

Defendant States’ violations of the Fourteenth

Amendment as a basis for granting leave to file, but

Texas cited only the Electors Clause to justify interim

6

relief. There are sufficient indicia of fraud or

intentional irregularities to trigger review under

substantive due process, but Texas relies on the

appearance of fraud under intentionally relaxed

ballot-integrity measures to press the seriousness of

the Electors Clause issues that Texas presents.1

Although Defendant States cite election litigation

involving other parties, those cases are irrelevant for

many reasons. First, they certainly do not bind Texas.

Baker v. General Motors Corp., 522 U.S. 222, 237-38

& n.11 (1998) (“[i]n no event … can issue preclusion

be invoked against one who did not participate in the

prior adjudication”). Second, even for parties bound, a

court that did not reach a citizen’s Electors Clause

claim because the citizen lacked standing for the claim

would not be binding on the merits: “lack of subject

matter jurisdiction goes to the very power of a court to

hear a controversy; ... [the] earlier case can be

accorded no weight either as precedent or as law of the

case.” United States v. Troup, 821 F.2d 194, 197 (3d

Cir. 1987) (quoting Ala. Hosp. Ass’n v. U.S., 228 Ct.Cl.

1 Although Michigan argues that “Texas … would

constitutionalize any claimed violation of state election law—no

matter how minor, fleeting, or inconsequential,” Mich. Br. 29,

that is not so. Garden-variety irregularities do not rise to the

constitutional cognizance, but intentional ones do. See, e.g.,

Minn. Voters All. v. Ritchie, 720 F.3d 1029, 1032 (8th Cir. 2013);

Bodine v. Elkhart Cty. Election Bd., 788 F.2d 1270, 1272 (7th Cir.

1986). Although Michigan claims that Wayne County’s

maladministration gave no group preference, Mich. Br. 33, that

is not true. See Compl. ¶¶ 91-101. The Wayne County process

(e.g., running ballots through multiple times, harassing party

workers and poll challengers) were not applied statewide. Compl.

¶¶ 94, 98 (citing declarations).

7

176, 656 F.2d 606 (1981)) (alterations in original).

Finally, lower-court decisions obviously do not bind

this Court. Am. Elec. Power Co. v. Connecticut, 564

U.S. 410, 428 (2011). In short, Defendant States’ raft

of third-party litigation is largely irrelevant.

Nor does the possible litigation against Defendant

States in other fora preclude or undermine the action

here under original jurisdiction. This Court “carried

over its exercise” of discretion to hear original-

jurisdiction cases “to actions between two States,

where our jurisdiction is exclusive.” Mississippi v.

Louisiana, 506 U.S. 73, 77 (1992). Finding an

adequate remedy to displace an original action

typically requires that the plaintiff State have the

alternate remedy, Maryland v. Louisiana, 451 U.S.

725, 744 (1981), but the Court has extended its

adequate-remedy inquiry to instances where a third

party with the same interest as the State (e.g., as

customers charged a tax by a utility) because that

third-party litigation could reach this Court on appeal

from the lower courts. Arizona v. New Mexico, 425

U.S. 794, 797 (1976). By contrast, no private party

shares Texas’s sovereign interest in the Senate, and

no court anywhere would have jurisdiction—as a

practical matter—over enough states to affect the

outcome of the election. Simply put, there is no

adequate remedy outside this Court.

D. Texas has standing to sue.

Voting rights are fundamental, Yick Wo v.

Hopkins, 118 U.S. 356, 370 (1886), and the Senate is

a body in which Defendant States’ actions threaten

Texas’s voting rights. U.S. CONST. art. V, cl. 3 (States’

“equal suffrage in the Senate”). With that standing in

8

its own right, Texas can assert parens patriae

standing for its citizens.2

Although Pennsylvania characterizes this action

as a “seditious abuse of the judicial process,” Penn. Br.

2, and ‘uniquely unserious,” id. at 11, Texas seeks to

enforce the right that preserves all others in a

democratic republic: suffrage. Reynolds v. Sims, 377

U.S. 533, 561-62 (1964). Whatever Pennsylvania’s

definition of sedition, moving this Court to cure grave

threats to Texas’s right of suffrage in the Senate and

its citizens’ rights of suffrage in presidential elections

upholds the Constitution, which is the very opposite

of sedition.

The potential loss of suffrage rights meets the

serious-magnitude test that Pennsylvania poses,

Penn. Br. 13, and the purely legal nature of Defendant

States’ violations meets its clear-and-convincing test.

Id. Michigan suggests that remand to legislatures to

reconsider the result of the election would not redress

Texas’s injury, Mich. Br. 34-35, but that is not the law.

FEC v. Akins, 524 U.S. 11, 25 (1998). Michigan also

argues that the remedy would disenfranchise millions

of voters, id., but Michigan officials disenfranchised

those Michigan voters. Specifically, Michigan admits

it cannot segregate the illegal ballots from the legal

ones, id. 9, which admits the impossibility of a lawful

recount on remand to the Michigan executive. Lutwak

v. United States, 344 U.S. 604, 617-18 (1953)

(“admissions … are admissible … [as] statements of a

2 Texas does not “disclaim” injury based on Equal Protection

or Due Process by noting that the one-person, one-vote principle

arises from the Constitution’s structure. Compare Penn. Br. 14

with Wesberry v. Sanders, 376 U.S. 1, 7-8 & n.10 (1964).

9

party”). Remand to the legislature is the only viable

option. Whether the legislature sets a new election or

provides some other mechanism to allocate Michigan’s

electoral votes is up to the legislature.

E. Neither laches nor mootness bar

injunctive relief.

Texas’s action is timely. Under Article III ripeness

and standing requirements, Texas could not sue until

after the election and, arguably, even after Defendant

States certified their obviously flawed election results.

Whereas Defendant States had months to plan, Texas

had less than four weeks to detect violations, find

witnesses willing to testify—notwithstanding

threats—and develop evidence and build a case.

Against Texas’s massive effort in minimal time,

Pennsylvania cites Benisek v. Lamone—where the

plaintiff waited “six years, and three general

elections”—for the proposition that a “party

requesting a preliminary injunction must generally

show reasonable diligence.” 138 S.Ct. 1942, 1944

(2018). Post-election laches are factually preposterous

given Texas’s diligence and pre-election laches are

legally barred given Texas’s lack of a ripe claim.

This action would be moot only if it were

“impossible for a court to grant” relief. Knox v. SEIU,

Local 1000, 567 U.S. 298, 307 (2012). The electors

have not yet voted, and the statutory deadlines may

be amended or stayed. Indeed, Congress did so for a

similarly flawed election in 1876-77. See Ch. 37, 19

Stat. 227 (1877). This action is not moot.

10

II. THE OTHER WINTER-HOLLINGSWORTH

FACTORS WARRANT INTERIM RELIEF.

While Texas’s likelihood of prevailing qualifies for

injunctive relief, the remaining Winter-Hollingsworth

factors also favor Texas.

A. Plaintiff State will suffer irreparable

harm if the Defendant States’

unconstitutional presidential electors

vote in the Electoral College.

Texas’s rights to political association and voting

are fundamental, and their loss for even a short time

constitutes irreparable harm. Elrod v. Burns, 427 U.S.

347, 373 (1976). Michigan argues that “[i]rregularities

not tending to affect results are not to defeat the will

of the majority.” Gracey v. Grosse Pointe Farms Clerk,

182 Mich. App. 193, 208, 452 N.W.2d 471, 478 (Ct.

App. 1989). But Michigan’s election results do not

clearly demonstrate the will of the majority of lawful

votes: there are too many questionable ballots from

Wayne County and systemic violation of ballot-

integrity protections for absentee ballots. Evidence

suggests that Mr. Biden did not win legally, and

Michigan admits that it can neither confirm nor deny

the lawful winner. The same is true for all Defendant

States because the ballots are commingled.

B. The balance of equities tips to the

Plaintiff State.

Defendant States first assume that Mr. Biden won

their States legitimately, then use that assumption to

criticize Texas’s arguments for disenfranchising

voters. If the flawed 2020 results stand, that result

would disenfranchise voters. At best for Defendant

States, the balance of equities could be neutral. But

11

because Defendant States cannot—or at least do not—

seriously defend the merits or show that Mr. Biden

actually prevailed, the equities tip in favor of Texas

and of the lawful process for resolving contested

elections.

C. The public interest favors interim relief.

Defendant States accept that the public-interest

factor collapses into the merits and do not seriously

dispute the merits. See Section I, supra. Instead, they

warn this Court about super-intending a national

election and future challenges to every election.

Although the merits should drive the public interest,

neither States nor the public have a cognizable

interest in unconstitutional results. And Defendant

States are wrong about the impact of acting versus not

acting:

• Not acting incentivizes further lawlessness and

will drive honest voters from the polls: why should

anyone vote if a few urban centers will manu-

facture an unlawful and insuperable vote margin?

• Acting now, once, removes any incentive for future

lawlessness. Injunctions and/or acts of executive

fiat that undermine the lawful election process

will cease if the Court acts now. Chastened by this

Court’s mandate, future non-legislative actors

will know they must seek legislative ratification

before an election for any changes to election

procedures that they believe to be necessary or

compelling.

The public interest demands ending the abusive

conduct that produced this dilemma.

12

CONCLUSION

The motion for interim relief enjoining Defendant

States from certifying Presidential Electors and from

having such electors vote in the electoral college until

further order of this Court should be granted.

Alternatively, this Court should summarily vacate

Defendant States’ certification of presidential electors

and remand to Defendant States’ legislatures

pursuant to 3 U.S.C. § 2 and the Electors Clause.

13

December 11, 2020


Ken Paxton

Counsel of Record


Brent Webster


General of Texas

Kurt B. Olson

Lawrence Joseph



Grant Dorfman



Aaron Reitz


Legal Strategy


Chief of Staff

Austin Kinghorn

General Counsel


P.O. Box 12548 (MC 059)

Austin, TX 78711-2548

[email protected]

(512) 936-1414

in the supreme court of the united...

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