Texas v. Pennsylvania: An Unprecedented Lawsuit

On December 7, 2020, Ken Paxton filed one of the most extraordinary lawsuits in modern American history. In Texas v. Pennsylvania (No. 155, Original), filed directly with the United States Supreme Court under its original jurisdiction, Paxton asked the Court to invalidate the presidential election results in four states — Pennsylvania, Georgia, Michigan, and Wisconsin — all states that Joe Biden had won.

The lawsuit alleged that these four states had violated the Constitution's Electors Clause by changing their election procedures without approval from their state legislatures. Specifically, Paxton claimed that pandemic-related changes to mail-in voting procedures, implemented by governors, secretaries of state, and courts, were unconstitutional. The remedy Paxton sought was breathtaking: he asked the Supreme Court to prohibit these states from casting their electoral votes, effectively disenfranchising millions of voters and potentially overturning the election result.

The legal theory was immediately recognized as radical. Texas was attempting to use the Supreme Court's original jurisdiction — typically reserved for disputes between states over matters like water rights or boundary lines — to challenge another state's internal election procedures. No state had ever successfully used this mechanism to invalidate another state's election.

On December 11, 2020, the Supreme Court rejected the case in a brief unsigned order. The Court held that Texas lacked standing to bring the suit: "Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections." In other words, Texas had no legal right to tell Pennsylvania, Georgia, Michigan, or Wisconsin how to run their elections.

The rejection was decisive, but the filing itself had already accomplished something: it had generated national attention and demonstrated Paxton's loyalty to President Trump. By the time the Supreme Court dismissed the case, seventeen other Republican-led states had filed briefs supporting Texas, and 126 Republican members of Congress had signed onto an amicus brief. Paxton had turned a meritless legal claim into a political rallying point.

Legal Analysis: A Frivolous Filing

The legal community's response to Texas v. Pennsylvania was swift and harsh. Constitutional law scholars across the ideological spectrum condemned the filing as frivolous, legally unsupported, and dangerous.

The standing problem was fundamental. As the Supreme Court noted, Texas could not demonstrate how Pennsylvania's election procedures injured Texas. The concept of standing requires a concrete and particularized injury; philosophical disagreement with another state's policies does not suffice. If Texas's theory had prevailed, any state could challenge any other state's laws on virtually any subject, destroying the federal system's careful balance.

Beyond standing, the factual claims in Paxton's lawsuit were unsupported. The suit alleged widespread fraud and irregularities but provided no credible evidence. Courts in Pennsylvania, Georgia, Michigan, and Wisconsin had already examined and rejected similar claims in dozens of cases. Election officials in these states, including Republicans, had certified the results as accurate. Paxton was asking the Supreme Court to disregard the findings of state courts, state election officials, and state legislatures based on speculation and innuendo.

The remedy Paxton sought was also extraordinary and fundamentally antidemocratic. He was asking the Supreme Court to prevent four states from casting their electoral votes — votes that reflected the certified choice of millions of voters. Even if there had been isolated irregularities (and there was no evidence of systematic problems), the appropriate remedy would be to address those specific issues, not to disenfranchise entire states.

Legal ethics experts raised questions about whether Paxton's filing violated professional responsibility rules. Attorneys are prohibited from bringing frivolous claims, and they must have a good-faith basis for factual allegations. The Texas v. Pennsylvania complaint made sweeping claims of fraud without supporting evidence, raising the question of whether Paxton had performed the due diligence required before filing such a consequential case.

Some observers noted the political context: Paxton was not acting as a disinterested law enforcement officer pursuing justice, but as a partisan actor attempting to overturn an election his preferred candidate had lost. The weaponization of the Attorney General's office for partisan political purposes represented a profound departure from the office's traditional role.

The January 6th Rally: "We Will Not Quit Fighting"

Less than a month after the Supreme Court rejected his lawsuit, Ken Paxton appeared on the national stage in Washington, D.C., at the rally that would precede one of the darkest days in American democracy.

On the morning of January 6, 2021, Paxton was one of several speakers at the "Save America" rally held on the Ellipse near the White House. The event, promoted by President Trump, had drawn thousands of supporters who believed, based on false claims promoted by Trump and allies like Paxton, that the election had been stolen.

In his speech, Paxton told the assembled crowd: "We will not quit fighting." He framed the election as fraudulent and portrayed himself and other election objectors as defenders of democracy, even as they sought to overturn a democratic election. His appearance at the rally lent the authority of his office — Texas Attorney General — to the false narrative that the election had been stolen.

After Paxton and other speakers finished, President Trump gave an incendiary speech in which he told supporters to "fight like hell" and urged them to march to the Capitol. A portion of the crowd did exactly that. What followed was a violent attack on the United States Capitol as Congress met to certify the electoral votes. Rioters breached the building, forced lawmakers to evacuate, assaulted police officers, and disrupted the constitutional process of counting electoral votes. Five people died in connection with the attack, and more than 140 police officers were injured.

Paxton himself did not enter the Capitol or participate in the violence. But his role in promoting the false claims that motivated the rioters, and his presence at the rally that immediately preceded the attack, placed him among the political figures who helped create the conditions for January 6th.

In the aftermath, Paxton faced criticism from Democrats and some Republicans for his role in the day's events. While he defended his appearance, arguing he had a First Amendment right to speak, critics pointed out that the issue was not his legal right but his judgment and his use of his official position to promote false claims about election fraud.

Withholding Communications: A Pattern of Secrecy

After the events of January 6th, journalists sought to understand the full extent of Ken Paxton's involvement in the efforts to overturn the election. Major Texas news organizations, including the Austin American-Statesman, the Texas Tribune, and the Houston Chronicle, filed requests under the Texas Public Information Act seeking Paxton's official communications related to the Texas v. Pennsylvania lawsuit, the January 6th rally, and the broader effort to challenge the election results.

Paxton's office refused to release the records. The Attorney General's office claimed various exemptions under the Public Information Act, including attorney-client privilege and attorney work product. The office also argued that releasing the communications would interfere with ongoing litigation and deliberative processes.

The refusal sparked a lengthy legal battle. News organizations threatened to sue, and the Travis County District Attorney's office became involved in the dispute over the records. The fight over the January 6th-related communications became part of a broader pattern: Paxton's office routinely withheld public records, delayed responses to information requests, and used every available exemption to avoid transparency.

The irony was stark. Paxton, who had filed a lawsuit seeking to overturn an election based on claims of impropriety and lack of transparency, was now refusing to provide transparency about his own actions. The public had a clear interest in understanding what communications Paxton had with the White House, with President Trump's legal team, and with other officials involved in the effort to challenge the election. Yet Paxton treated these communications as secret, shielding them from public scrutiny.

Critics argued that Paxton's refusal to release records was part of a broader pattern of evading accountability. Whether the issue was his securities fraud charges, the whistleblower scandal in his office, or his role in January 6th, Paxton consistently sought to avoid transparency and prevent the public from learning the full truth about his conduct.

The Pardon Question: A Quid Pro Quo?

Understanding Ken Paxton's aggressive efforts to overturn the 2020 election requires examining his personal legal situation at the time. In December 2020, when Paxton filed Texas v. Pennsylvania, he had been under felony indictment for securities fraud for more than five years. The charges, filed in 2015, alleged that Paxton had defrauded investors in a North Texas technology company. If convicted, Paxton faced the possibility of decades in prison.

According to reporting by Associated Press and other news organizations, Paxton was seeking a presidential pardon from Donald Trump for his securities fraud charges. The timing is significant: Paxton filed his Supreme Court lawsuit on December 7, 2020, more than a month after the election but while Trump still had the power to grant pardons. Trump would leave office on January 20, 2021, closing the window for a pardon.

The question that has shadowed Paxton ever since is whether his election challenges were motivated, at least in part, by a desire to secure a presidential pardon. If so, Paxton would have weaponized his official position as Attorney General, and attempted to undermine American democracy, to serve his personal legal interests — a staggering abuse of power.

Paxton has denied that he sought a pardon in exchange for filing the lawsuit or speaking at the January 6th rally. But the circumstantial evidence is compelling. Paxton had a powerful personal motive to curry favor with President Trump. He was facing serious legal jeopardy. He filed a legally frivolous lawsuit that nonetheless demonstrated extreme loyalty to Trump. He spoke at Trump's rally on January 6th. And he was reportedly in communication with Trump's team about the possibility of a pardon.

No pardon materialized. On his final day in office, Trump issued a wave of pardons and commutations, but Paxton's name was not on the list. Whether Trump seriously considered pardoning Paxton, and why he ultimately chose not to, remains unclear. But the episode left Paxton with nothing to show for his efforts except damaged credibility and the taint of having placed personal interest above his duties as a law enforcement officer.

The pardon question would later resurface during Paxton's impeachment proceedings in 2023, when one of the articles of impeachment alleged that Paxton had abused his office in service of a political patron in an effort to obtain personal benefits, including a potential pardon.

Connection to Broader Movement: Legitimizing Election Denial

Ken Paxton's actions in late 2020 and early 2021 placed him at the forefront of a movement that has fundamentally reshaped American politics: the denial of the 2020 election results and the promotion of false claims of widespread voter fraud.

The election denial movement did not begin with Paxton, but his participation was significant because of his position. As a sitting state attorney general — a chief law enforcement officer with specialized legal expertise — Paxton lent a veneer of credibility and legal legitimacy to claims that had been rejected by courts at every level.

When Paxton filed Texas v. Pennsylvania, he was not acting alone. Seventeen other Republican-led states joined the lawsuit, and 126 Republican members of Congress signed an amicus brief supporting it. Paxton's willingness to use his official position to challenge the election gave permission to other officials to do the same. It normalized what would once have been unthinkable: elected officials using their offices to attempt to overturn a democratic election.

The consequences of the election denial movement have been profound. Polling shows that a majority of Republican voters continue to believe, falsely, that the 2020 election was stolen. State legislatures have passed laws making it harder to vote, justified by false claims of fraud. Election officials have faced harassment and threats. The peaceful transfer of power, once taken for granted in American democracy, can no longer be assumed.

Paxton's role in this movement is a matter of historical record. He filed a frivolous lawsuit seeking to disenfranchise millions of voters. He spoke at a rally that preceded a violent attack on the Capitol. He promoted false claims of election fraud that have corroded public trust in democratic institutions. And he did all of this while holding one of the most important law enforcement positions in the country.

The question for Texas voters is whether someone who has shown such poor judgment, who has weaponized his office for partisan purposes, and who has demonstrated a willingness to undermine democracy when it serves his interests, should continue to serve as the state's Attorney General. The record speaks for itself.