A coalition of 17 state attorneys general, led by Missouri Attorney General Eric Schmitt, today filed an amicus brief in State of Texas v. Commonwealth of Pennsylvania, State of Georgia, State of Michigan and State of Wisconsin to urge the Court to grant Texas leave to file their original action.
The brief can be found here.
“The integrity of our elections is of critical importance to maintaining our republic, both today and in future elections,” Attorney General Schmitt said. “The stakes of protecting our Constitution, defending our liberty and ensuring that all votes are counted fairly couldn’t be higher. With this brief, we are joining the fight.”
The brief states that the Texas “Bill of Complaint raises constitutional questions of great public importance that warrant this Court’s review.”
There are three main arguments in the brief. First, the separation of powers provision of the Constitution’s Elector’s Clause is a structural check on government that safeguards liberty. Second, stripping away safeguards of voting by mail can create risks of voter fraud. And, finally, the defendant states abolished critical safeguards against fraud in voting by mail.
For the first argument, the brief argues that 1) only laws enacted by state legislatures can establish “the times, places and manner of holding elections for Senators and Representatives,” 2) this law applies to the selection of Presidential electors, 3) non-legislative actors in each of the defendant states encroached on the election authority of the legislatures, violating the separation of powers, and 4) this violation of the Constitution’s separation of powers undermines the liberty of all Americans, including the voters in the amici states.
To illustrate the risks of voter fraud in mail in voting and absentee ballot voting, the brief cites several sources that all express the same concerns about mail-in voting and absentee ballot voting, including the U.S. Supreme Court case Crawford v. Marion County Election Board, the Carter-Baker Commission on Federal Election Reform, the U.S. Department of Justice’s manual on Federal Prosecution of Election Offenses, the U.S. Government Accountability Office, and more.
Additionally, the brief cites several previous examples of voter fraud by mail-in or absentee voting, including:
The brief notes recently decided Missouri election cases that dealt with potential election fraud, including Mo. State Conference of the NAACP v. State. In that case, the court concluded that “fraud in voting by mail is a recurrent problem, that it is hard to detect and prosecute, that there are strong incentives and weak penalties for doing so, and that it has the capacity to affect the outcome of close elections.”
Finally, the brief alleges that the defendant states abolished safeguards that would have been critical to preventing fraud in voting by mail. First, non-legislative actors in Pennsylvania, Georgia and Michigan abolished or undermined signature verification requirements. Second, non-legislative actors altered the statutory rules for secure handling of absentee and mail-in ballots in Pennsylvania, Michigan and Wisconsin. Third, the Bill of Complaint also alleges that certain counties in the defendant states excluded bipartisan observers from participating in the opening of ballots and the ballot counting process. For example, it alleges that election officials in Philadelphia and Allegheny County, Pennsylvania “violated state law by excluding Republican observes from the opening, counting and recording of ballots.” It also alleges that election officials in Wayne County, Michigan violated state statutes by “systematically excluding poll watchers and canvassers.” Finally, the brief argues that the Pennsylvania Supreme Count enhanced opportunities for fraud by mandating that late ballots must be counted even when they were not postmarked or had no legible postmark, and thus there was no evidence they were mailed by Election Day.
The brief concludes by asking the Court to grant Texas’ motion for leave to file a Bill of Complaint.
Along with Missouri, attorneys general from Alabama, Arkansas, Florida, Indiana, Kansas, Louisiana, Mississippi, Montana, Nebraska, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Utah and West Virginia also signed on to the brief.