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AG Paxton Sues Battleground States for Unconstitutional Changes to 2020 Election Laws

Posted: Saturday, August 28, 2021 at 11:11 AM EST - Item ID: 926

No. ______, Original
In the Supreme Court of the United States 
STATE OF TEXAS,
Plaintiff,
v.
COMMONWEALTH OF PENNSYLVANIA, STATE OF 
GEORGIA, STATE OF MICHIGAN, AND STATE OF 
WISCONSIN,
Defendants.
MOTION FOR LEAVE TO FILE BILL OF 
COMPLAINT
Ken Paxton*
Attorney General of Texas
Brent Webster
First Assistant Attorney 
General of Texas
Lawrence Joseph
Special Counsel to the 
Attorney General of Texas
Office of the Attorney General
P.O. Box 12548 (MC 059)
Austin, TX 78711-2548
kenneth.paxton@oag.texas.gov
(512) 936-1414
* Counsel of Record
i
TABLE OF CONTENTS
Pages
Motion for leave to File Bill of Complaint................. 1
No. ______, Original
In the Supreme Court of the United States 
STATE OF TEXAS,
Plaintiff,
v.
COMMONWEALTH OF PENNSYLVANIA, STATE OF 
GEORGIA, STATE OF MICHIGAN, AND STATE OF 
WISCONSIN,
Defendants.
MOTION FOR LEAVE TO FILE 
BILL OF COMPLAINT
Pursuant to 28 U.S.C. § 1251(a) and this Court’s 
Rule 17, the State of Texas respectfully seeks leave to 
file the accompanying Bill of Complaint against the 
States of Georgia, Michigan, and Wisconsin and the 
Commonwealth of Pennsylvania (collectively, the 
“Defendant States”) challenging their administration 
of the 2020 presidential election.
As set forth in the accompanying brief and 
complaint, the 2020 election suffered from significant 
and unconstitutional irregularities in the Defendant 
States:
• Non-legislative actors’ purported amendments to 
States’ duly enacted election laws, in violation of 
the Electors Clause’s vesting State legislatures 
with plenary authority regarding the 
appointment of presidential electors.
• Intrastate differences in the treatment of voters, 
with more favorable allotted to voters – whether 
lawful or unlawful – in areas administered by 
local government under Democrat control and 
with populations with higher ratios of Democrat 
voters than other areas of Defendant States.
• The appearance of voting irregularities in the 
Defendant States that would be consistent with 
the unconstitutional relaxation of ballot-integrity 
protections in those States’ election laws.
All these flaws – even the violations of state election 
law – violate one or more of the federal requirements 
for elections (i.e., equal protection, due process, and 
the Electors Clause) and thus arise under federal law. 
See Bush v Gore, 531 U.S. 98, 113 (2000) (“significant 
departure from the legislative scheme for appointing 
Presidential electors presents a federal constitutional 
question”) (Rehnquist, C.J., concurring). Plaintiff 
State respectfully submits that the foregoing types of 
electoral irregularities exceed the hanging-chad saga 
of the 2000 election in their degree of departure from 
both state and federal law. Moreover, these flaws 
cumulatively preclude knowing who legitimately won 
the 2020 election and threaten to cloud all future 
elections.
Taken together, these flaws affect an outcomedeterminative numbers of popular votes in a group of 
States that cast outcome-determinative numbers of 
electoral votes. This Court should grant leave to file 
the complaint and, ultimately, enjoin the use of 
unlawful election results without review and 
ratification by the Defendant States’ legislatures and 
remand to the Defendant States’ respective 
legislatures to appoint Presidential Electors in a 
manner consistent with the Electors Clause and
pursuant to 3 U.S.C. § 2.
December 7, 2020 Respectfully submitted,
Ken Paxton*
Attorney General of Texas
Brent Webster
First Assistant Attorney 
General of Texas
Lawrence Joseph
Special Counsel to the 
Attorney General of Texas
Office of the Attorney General
P.O. Box 12548 (MC 059)
Austin, TX 78711-2548
kenneth.paxton@oag.texas.gov
(512) 936-1414
* Counsel of Record
No. ______, 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.
BILL OF COMPLAINT
Ken Paxton*
Attorney General of Texas
Brent Webster
First Assistant Attorney 
General of Texas
Lawrence Joseph
Special Counsel to the 
Attorney General of Texas
Office of the Attorney General
P.O. Box 12548 (MC 059)
Austin, TX 78711-2548
kenneth.paxton@oag.texas.gov
(512) 936-1414
* Counsel of Record
i
TABLE OF CONTENTS
Pages
Bill of Complaint ........................................................ 1
Nature of the Action................................................... 3
Jurisdiction and Venue .............................................. 8
Parties....................................................................... 10
Legal Background .................................................... 10
Facts.......................................................................... 12
Commonwealth of Pennsylvania....................... 14
State of Georgia ................................................. 20
State of Michigan............................................... 23
State of Wisconsin.............................................. 29
Count I: Electors Clause .......................................... 36
Count II: Equal Protection....................................... 37
Count III: Due Process ............................................. 38
Prayer for Relief ....................................................... 39
1
“[T]hat form of government which is best contrived to 
secure an impartial and exact execution of the law, is 
the best of republics.”
—John Adams
BILL OF COMPLAINT
Our Country stands at an important crossroads. 
Either the Constitution matters and must be followed, 
even when some officials consider it inconvenient or 
out of date, or it is simply a piece of parchment on 
display at the National Archives. We ask the Court to 
choose the former.
Lawful elections are at the heart of our 
constitutional democracy. The public, and indeed the 
candidates themselves, have a compelling interest in 
ensuring that the selection of a President—any 
President—is legitimate. If that trust is lost, the 
American Experiment will founder. A dark cloud 
hangs over the 2020 Presidential election. 
Here is what we know. Using the COVID-19 
pandemic as a justification, government officials in 
the defendant states of Georgia, Michigan, and 
Wisconsin, and the Commonwealth of Pennsylvania 
(collectively, “Defendant States”), usurped their 
legislatures’ authority and unconstitutionally revised 
their state’s election statutes. They accomplished 
these statutory revisions through executive fiat or 
friendly lawsuits, thereby weakening ballot integrity. 
Finally, these same government officials flooded the 
Defendant States with millions of ballots to be sent 
through the mails, or placed in drop boxes, with little 
2
or no chain of custody1 and, at the same time, 
weakened the strongest security measures protecting 
the integrity of the vote—signature verification and 
witness requirements. 
Presently, evidence of material illegality in the 
2020 general elections held in Defendant States grows 
daily. And, to be sure, the two presidential candidates 
who have garnered the most votes have an interest in 
assuming the duties of the Office of President without 
a taint of impropriety threatening the perceived 
legitimacy of their election. However, 3 U.S.C. § 7 
requires that presidential electors be appointed on 
December 14, 2020. That deadline, however, should 
not cement a potentially illegitimate election result in 
the middle of this storm—a storm that is of the 
Defendant States’ own making by virtue of their own 
unconstitutional actions. 
This Court is the only forum that can delay the 
deadline for the appointment of presidential electors 
under 3 U.S.C. §§ 5, 7. To safeguard public legitimacy 
at this unprecedented moment and restore public 
trust in the presidential election, this Court should 
extend the December 14, 2020 deadline for Defendant 
States’ certification of presidential electors to allow 
these investigations to be completed. Should one of 
the two leading candidates receive an absolute 
majority of the presidential electors’ votes to be cast 
on December 14, this would finalize the selection of 
our President. The only date that is mandated under 
1 See https://georgiastarnews.com/2020/12/05/dekalbcounty-cannot-find-chain-of-custody-records-for-absenteeballots-deposited-in-drop-boxes-it-has-not-been-determined-ifresponsive-records-to-your-request-exist/
3
the Constitution, however, is January 20, 2021. U.S.
CONST. amend. XX. 
Against that background, the State of Texas 
(“Plaintiff State”) brings this action against 
Defendant States based on the following allegations:
NATURE OF THE ACTION
1. Plaintiff State challenges Defendant 
States’ administration of the 2020 election under the 
Electors Clause of Article II, Section 1, Clause 2, and 
the Fourteenth Amendment of the U.S. Constitution. 
2. This case presents a question of law: Did 
Defendant States violate the Electors Clause (or, in 
the alternative, the Fourteenth Amendment) by 
taking—or allowing—non-legislative actions to 
change the election rules that would govern the 
appointment of presidential electors?
3. Those unconstitutional changes opened 
the door to election irregularities in various forms. 
Plaintiff State alleges that each of the Defendant 
States flagrantly violated constitutional rules 
governing the appointment of presidential electors. In 
doing so, seeds of deep distrust have been sown across 
the country. In the spirit of Marbury v. Madison, this 
Court’s attention is profoundly needed to declare what 
the law is and to restore public trust in this election.
4. As Justice Gorsuch observed recently, 
“Government is not free to disregard the 
[Constitution] in times of crisis. … Yet recently, 
during the COVID pandemic, certain States seem to 
have ignored these long-settled principles.” Roman 
Catholic Diocese of Brooklyn, New York v. Cuomo, 592 
U.S. ____ (2020) (Gorsuch, J., concurring). This case is 
no different.
4
5. Each of Defendant States acted in a 
common pattern. State officials, sometimes through 
pending litigation (e.g., settling “friendly” suits) and 
sometimes unilaterally by executive fiat, announced 
new rules for the conduct of the 2020 election that 
were inconsistent with existing state statutes defining 
what constitutes a lawful vote.
6. Defendant States also failed to segregate 
ballots in a manner that would permit accurate 
analysis to determine which ballots were cast in 
conformity with the legislatively set rules and which 
were not. This is especially true of the mail-in ballots 
in these States. By waiving, lowering, and otherwise 
failing to follow the state statutory requirements for 
signature validation and other processes for ballot 
security, the entire body of such ballots is now 
constitutionally suspect and may not be legitimately 
used to determine allocation of the Defendant States’ 
presidential electors.
7. The rampant lawlessness arising out of 
Defendant States’ unconstitutional acts is described 
in a number of currently pending lawsuits in 
Defendant States or in public view including:
• Dozens of witnesses testifying under oath about: 
the physical blocking and kicking out of 
Republican poll challengers; thousands of the 
same ballots run multiple times through 
tabulators; mysterious late night dumps of 
thousands of ballots at tabulation centers; 
illegally backdating thousands of ballots; 
signature verification procedures ignored; more 
5
than 173,000 ballots in the Wayne County, MI 
center that cannot be tied to a registered voter;2
• Videos of: poll workers erupting in cheers as poll 
challengers are removed from vote counting 
centers; poll watchers being blocked from entering 
vote counting centers—despite even having a 
court order to enter; suitcases full of ballots being 
pulled out from underneath tables after poll 
watchers were told to leave.
• Facts for which no independently verified 
reasonable explanation yet exists: On October 1, 
2020, in Pennsylvania a laptop and several USB 
drives, used to program Pennsylvania’s Dominion 
voting machines, were mysteriously stolen from a 
warehouse in Philadelphia. The laptop and the 
USB drives were the only items taken, and 
potentially could be used to alter vote tallies; In 
Michigan, which also employed the same
Dominion voting system, on November 4, 2020, 
Michigan election officials have admitted that a 
purported “glitch” caused 6,000 votes for 
President Trump to be wrongly switched to 
Democrat Candidate Biden. A flash drive 
containing tens of thousands of votes was left 
unattended in the Milwaukee tabulations center 
in the early morning hours of Nov. 4, 2020, 
without anyone aware it was not in a proper chain 
of custody.
2 All exhibits cited in this Complaint are in the Appendix to 
the Plaintiff State’s forthcoming motion to expedite (“App. 1a151a”). See Complaint (Doc. No. 1), Donald J. Trump for 
President, Inc. v. Benson, 1:20-cv-1083 (W.D. Mich. Nov. 11, 
2020) at ¶¶ 26-55 & Doc. Nos. 1-2, 1-4.
6
8. Nor was this Court immune from the 
blatant disregard for the rule of law. Pennsylvania 
itself played fast and loose with its promise to this 
Court. In a classic bait and switch, Pennsylvania used 
guidance from its Secretary of State to argue that this 
Court should not expedite review because the State 
would segregate potentially unlawful ballots. A court 
of law would reasonably rely on such a representation. 
Remarkably, before the ink was dry on the Court’s 4-
4 decision, Pennsylvania changed that guidance, 
breaking the State’s promise to this Court. Compare 
Republican Party of Pa. v. Boockvar, No. 20-542, 2020 
U.S. LEXIS 5188, at *5-6 (Oct. 28, 2020) (“we have 
been informed by the Pennsylvania Attorney General 
that the Secretary of the Commonwealth issued 
guidance today directing county boards of elections to 
segregate [late-arriving] ballots”) (Alito, J., 
concurring) with Republican Party v. Boockvar, No. 
20A84, 2020 U.S. LEXIS 5345, at *1 (Nov. 6, 2020) 
(“this Court was not informed that the guidance 
issued on October 28, which had an important bearing 
on the question whether to order special treatment of 
the ballots in question, had been modified”) (Alito, J., 
Circuit Justice).
9. Expert analysis using a commonly 
accepted statistical test further raises serious 
questions as to the integrity of this election. 
10. The probability of former Vice President 
Biden winning the popular vote in the four Defendant 
States—Georgia, Michigan, Pennsylvania, and 
Wisconsin—independently given President Trump’s 
early lead in those States as of 3 a.m. on November 4, 
2020, is less than one in a quadrillion, or 1 in 
1,000,000,000,000,000. For former Vice President 
Biden to win these four States collectively, the odds of 
7
that event happening decrease to less than one in a 
quadrillion to the fourth power (i.e., 1 in 
1,000,000,000,000,0004). See Decl. of Charles J. 
Cicchetti, Ph.D. (“Cicchetti Decl.”) at ¶¶ 14-21, 30-31. 
See App. 4a-7a, 9a.
11. The same less than one in a quadrillion 
statistical improbability of Mr. Biden winning the 
popular vote in the four Defendant States—Georgia, 
Michigan, Pennsylvania, and Wisconsin—
independently exists when Mr. Biden’s performance 
in each of those Defendant States is compared to 
former Secretary of State Hilary Clinton’s 
performance in the 2016 general election and 
President Trump’s performance in the 2016 and 2020 
general elections. Again, the statistical improbability 
of Mr. Biden winning the popular vote in these four 
States collectively is 1 in 1,000,000,000,000,0005. Id. 
10-13, 17-21, 30-31.
12. Put simply, there is substantial reason to 
doubt the voting results in the Defendant States.
13. By purporting to waive or otherwise 
modify the existing state law in a manner that was 
wholly ultra vires and not adopted by each state’s 
legislature, Defendant States violated not only the 
Electors Clause, U.S. CONST. art. II, § 1, cl. 2, but also 
the Elections Clause, id. art. I, § 4 (to the extent that 
the Article I Elections Clause textually applies to the 
Article II process of selecting presidential electors).
14. Plaintiff States and their voters are 
entitled to a presidential election in which the votes 
from each of the states are counted only if the ballots 
are cast and counted in a manner that complies with 
the pre-existing laws of each state. See Anderson v. 
Celebrezze, 460 U.S. 780, 795 (1983) (“for the 
8
President and the Vice President of the United States 
are the only elected officials who represent all the 
voters in the Nation.”). Voters who cast lawful ballots 
cannot have their votes diminished by states that 
administered their 2020 presidential elections in a 
manner where it is impossible to distinguish a lawful 
ballot from an unlawful ballot. 
15. The number of absentee and mail-in 
ballots that have been handled unconstitutionally in 
Defendant States greatly exceeds the difference 
between the vote totals of the two candidates for 
President of the United States in each Defendant 
State.
16. In addition to injunctive relief for this 
election, Plaintiff State seeks declaratory relief for all 
presidential elections in the future. This problem is 
clearly capable of repetition yet evading review. The 
integrity of our constitutional democracy requires 
that states conduct presidential elections in 
accordance with the rule of law and federal 
constitutional guarantees. 
JURISDICTION AND VENUE
17. This Court has original and exclusive 
jurisdiction over this action because it is a 
“controvers[y] between two or more States” under 
Article III, § 2, cl. 2 of the U.S. Constitution and 28 
U.S.C. § 1251(a) (2018).
18. In a presidential election, “the impact of 
the votes cast in each State is affected by the votes 
cast for the various candidates in other States.” 
Anderson, 460 U.S. at 795. The constitutional failures 
of Defendant States injure Plaintiff States because 
“‘the right of suffrage can be denied by a debasement 
or dilution of the weight of a citizen’s vote just as 
9
effectively as by wholly prohibiting the free exercise of 
the franchise.’” Bush v. Gore, 531 U.S. 98, 105 (2000) 
(quoting Reynolds v. Sims, 377 U. S. 533, 555 (1964)) 
(Bush II). In other words, Plaintiff State is acting to 
protect the interests of its respective citizens in the 
fair and constitutional conduct of elections used to 
appoint presidential electors.
19. This Court’s Article III decisions indicate 
that only a state can bring certain claims. Lance v. 
Coffman, 549 U.S. 437, 442 (2007) (distinguishing 
citizen plaintiffs from citizen relators who sued in the 
name of a state); cf. Massachusetts v. EPA, 549 U.S. 
497, 520 (2007) (courts owe states “special solicitude 
in standing analysis”). Moreover, redressability likely 
would undermine a suit against a single state officer 
or State because no one State’s electoral votes will 
make a difference in the election outcome. This action 
against multiple State defendants is the only 
adequate remedy for Plaintiff States, and this Court 
is the only court that can accommodate such a suit.
20. Individual state courts do not—and 
under the circumstance of contested elections in 
multiple states, cannot—offer an adequate remedy to 
resolve election disputes within the timeframe set by 
the Constitution to resolve such disputes and to 
appoint a President via the electoral college. No 
court—other than this Court—can redress 
constitutional injuries spanning multiple States with 
the sufficient number of states joined as defendants or 
respondents to make a difference in the Electoral
College.
21. This Court is the sole forum in which to 
exercise the jurisdictional basis for this action.
10
PARTIES
22. Plaintiff is the State of Texas, which is a 
sovereign State of the United States.
23. Defendants are the Commonwealth of 
Pennsylvania and the States of Georgia, Michigan, 
and Wisconsin, which are sovereign States of the 
United States.
LEGAL BACKGROUND
24. Under the Supremacy Clause, the “Constitution, and the laws of the United States which 
shall be made in pursuance thereof … shall be the 
supreme law of the land.” U.S. CONST. Art. VI, cl. 2.
25. “The individual citizen has no federal 
constitutional right to vote for electors for the 
President of the United States unless and until the 
state legislature chooses a statewide election as the 
means to implement its power to appoint members of 
the electoral college.” Bush II, 531 U.S. at 104 (citing 
U.S. CONST. art. II, § 1).
26. State legislatures have plenary power to 
set the process for appointing presidential electors: 
“Each State shall appoint, in such Manner as the 
Legislature thereof may direct, a Number of Electors.” 
U.S. CONST. art. II, §1, cl. 2; see also Bush II, 531 U.S. 
at 104 (“[T]he state legislature’s power to select the 
manner for appointing electors is plenary.” (emphasis 
added)).
27. At the time of the Founding, most States 
did not appoint electors through popular statewide 
elections. In the first presidential election, six of the 
ten States that appointed electors did so by direct 
legislative appointment. McPherson v. Blacker, 146 
U.S. 1, 29-30 (1892).
11
28. In the second presidential election, nine 
of the fifteen States that appointed electors did so by 
direct legislative appointment. Id. at 30.
29. In the third presidential election, nine of 
sixteen States that appointed electors did so by direct 
legislative appointment. Id. at 31. This practice 
persisted in lesser degrees through the Election of 
1860. Id. at 32.
30. Though “[h]istory has now favored the 
voter,” Bush II, 531 U.S. at 104, “there is no doubt of
the right of the legislature to resume the power [of 
appointing presidential electors] at any time, for it can 
neither be taken away nor abdicated.” McPherson, 146 
U.S. at 35 (emphasis added); cf. 3 U.S.C. § 2 
(“Whenever any State has held an election for the 
purpose of choosing electors, and has failed to make a 
choice on the day prescribed by law, the electors may 
be appointed on a subsequent day in such a manner 
as the legislature of such State may direct.”).
31. Given the State legislatures’ 
constitutional primacy in selecting presidential 
electors, the ability to set rules governing the casting 
of ballots and counting of votes cannot be usurped by 
other branches of state government.
32. The Framers of the Constitution decided 
to select the President through the Electoral College 
“to afford as little opportunity as possible to tumult 
and disorder” and to place “every practicable obstacle 
[to] cabal, intrigue, and corruption,” including “foreign 
powers” that might try to insinuate themselves into 
our elections. THE FEDERALIST NO. 68, at 410-11 (C. 
Rossiter, ed. 1961) (Madison, J.).
33. Defendant States’ applicable laws are set 
out under the facts for each Defendant State.
12
FACTS
34. The use of absentee and mail-in ballots 
skyrocketed in 2020, not only as a public-health 
response to the COVID-19 pandemic but also at the 
urging of mail-in voting’s proponents, and most 
especially executive branch officials in Defendant 
States. According to the Pew Research Center, in the 
2020 general election, a record number of votes—
about 65 million—were cast via mail compared to 33.5 
million mail-in ballots cast in the 2016 general 
election—an increase of more than 94 percent.
35. In the wake of the contested 2000 
election, the bipartisan Jimmy Carter-James Baker 
commission identified absentee ballots as “the largest 
source of potential voter fraud.” BUILDING 
CONFIDENCE IN U.S. ELECTIONS: REPORT OF THE 
COMMISSION ON FEDERAL ELECTION REFORM, at 46 
(Sept. 2005). 
36. Concern over the use of mail-in ballots is 
not novel to the modern era, Dustin Waters, Mail-in 
Ballots Were Part of a Plot to Deny Lincoln Reelection 
in 1864, WASH. POST (Aug. 22, 2020),3 but it remains a 
current concern. Crawford v. Marion Cty. Election 
Bd., 553 U.S. 181, 194-96 & n.11 (2008); see also Texas 
Office of the Attorney General, AG Paxton Announces 
Joint Prosecution of Gregg County Organized Election 
Fraud in Mail-In Balloting Scheme (Sept. 24, 2020); 
Harriet Alexander & Ariel Zilber, Minneapolis police 
opens investigation into reports that Ilhan Omar's 
supporters illegally harvested Democrat ballots in 
Minnesota, DAILY MAIL, Sept. 28, 2020. 
3 https://www.washingtonpost.com/history/2020/08/22/mailin-voting-civil-war-election-conspiracy-lincoln/
13
37. Absentee and mail-in voting are the 
primary opportunities for unlawful ballots to be cast. 
As a result of expanded absentee and mail-in voting 
in Defendant States, combined with Defendant States’ 
unconstitutional modification of statutory protections 
designed to ensure ballot integrity, Defendant States 
created a massive opportunity for fraud. In addition, 
the Defendant States have made it difficult or 
impossible to separate the constitutionally tainted 
mail-in ballots from all mail-in ballots.
38. Rather than augment safeguards 
against illegal voting in anticipation of the millions of 
additional mail-in ballots flooding their States, 
Defendant States all materially weakened, or did 
away with, security measures, such as witness or 
signature verification procedures, required by their 
respective legislatures. Their legislatures established 
those commonsense safeguards to prevent—or at least 
reduce—fraudulent mail-in ballots. 
39. Significantly, in Defendant States, 
Democrat voters voted by mail at two to three times 
the rate of Republicans. Former Vice President Biden 
thus greatly benefited from this unconstitutional 
usurpation of legislative authority, and the 
weakening of legislative mandated ballot security 
measures.
40. The outcome of the Electoral College vote 
is directly affected by the constitutional violations 
committed by Defendant States. Plaintiff State 
complied with the Constitution in the process of 
appointing presidential electors for President Trump. 
Defendant States violated the Constitution in the 
process of appointing presidential electors by 
unlawfully abrogating state election laws designed to 
14
protect the integrity of the ballots and the electoral 
process, and those violations proximately caused the 
appointment of presidential electors for former Vice 
President Biden. Plaintiff State will therefore be 
injured if Defendant States’ unlawfully certify these 
presidential electors.
Commonwealth of Pennsylvania
41. Pennsylvania has 20 electoral votes, 
with a statewide vote tally currently estimated at 
3,363,951 for President Trump and 3,445,548 for 
former Vice President Biden, a margin of 81,597 votes. 
42. The number of votes affected by the 
various constitutional violations exceeds the margin 
of votes separating the candidates.
43. Pennsylvania’s Secretary of State, Kathy 
Boockvar, without legislative approval, unilaterally 
abrogated several Pennsylvania statutes requiring 
signature verification for absentee or mail-in ballots. 
Pennsylvania’s legislature has not ratified these 
changes, and the legislation did not include a 
severability clause.
44. On August 7, 2020, the League of Women 
Voters of Pennsylvania and others filed a complaint 
against Secretary Boockvar and other local election 
officials, seeking “a declaratory judgment that 
Pennsylvania existing signature verification 
procedures for mail-in voting” were unlawful for a 
number of reasons. League of Women Voters of 
Pennsylvania v. Boockvar, No. 2:20-cv-03850-PBT, 
(E.D. Pa. Aug. 7, 2020).
45. The Pennsylvania Department of State 
quickly settled with the plaintiffs, issuing revised 
guidance on September 11, 2020, stating in relevant 
part: “The Pennsylvania Election Code does not 
15
authorize the county board of elections to set aside 
returned absentee or mail-in ballots based solely on 
signature analysis by the county board of elections.”
46. This guidance is contrary to 
Pennsylvania law. First, Pennsylvania Election Code 
mandates that, for non-disabled and non-military 
voters, all applications for an absentee or mail-in 
ballot “shall be signed by the applicant.” 25 PA. STAT. 
§§ 3146.2(d) & 3150.12(c). Second, Pennsylvania’s 
voter signature verification requirements are 
expressly set forth at 25 PA. STAT. 350(a.3)(1)-(2) and 
§ 3146.8(g)(3)-(7).
47. The Pennsylvania Department of State’s 
guidance unconstitutionally did away with 
Pennsylvania’s statutory signature verification 
requirements. Approximately 70 percent of the 
requests for absentee ballots were from Democrats 
and 25 percent from Republicans. Thus, this 
unconstitutional abrogation of state election law 
greatly inured to former Vice President Biden’s 
benefit.
48. In addition, in 2019, Pennsylvania’s
legislature enacted bipartisan election reforms, 2019 
Pa. Legis. Serv. Act 2019-77, that set inter alia a 
deadline of 8:00 p.m. on election day for a county 
board of elections to receive a mail-in ballot. 25 PA.
STAT. §§ 3146.6(c), 3150.16(c). Acting under a 
generally worded clause that “Elections shall be free 
and equal,” PA. CONST. art. I, § 5, cl. 1, a 4-3 majority 
of Pennsylvania’s Supreme Court in Pa. Democratic 
Party v. Boockvar, 238 A.3d 345 (Pa. 2020), extended 
that deadline to three days after Election Day and 
adopted a presumption that even non-postmarked 
ballots were presumptively timely.
16
49. Pennsylvania’s election law also requires 
that poll-watchers be granted access to the opening, 
counting, and recording of absentee ballots: “Watchers 
shall be permitted to be present when the envelopes 
containing official absentee ballots and mail-in ballots 
are opened and when such ballots are counted and 
recorded.” 25 PA. STAT. § 3146.8(b). Local election 
officials in Philadelphia and Allegheny Counties 
decided not to follow 25 PA. STAT. § 3146.8(b) for the 
opening, counting, and recording of absentee and 
mail-in ballots.
50. Prior to the election, Secretary Boockvar 
sent an email to local election officials urging them to 
provide opportunities for various persons—including 
political parties—to contact voters to “cure” defective 
mail-in ballots. This process clearly violated several 
provisions of the state election code.
• Section 3146.8(a) requires: “The county boards of 
election, upon receipt of official absentee ballots in 
sealed official absentee ballot envelopes as 
provided under this article and mail-in ballots as 
in sealed official mail-in ballot envelopes as 
provided under Article XIII-D,1 shall safely keep 
the ballots in sealed or locked containers until 
they are to be canvassed by the county board of 
elections.”
• Section 3146.8(g)(1)(ii) provides that mail-in 
ballots shall be canvassed (if they are received by 
eight o’clock p.m. on election day) in the manner 
prescribed by this subsection. 
• Section 3146.8(g)(1.1) provides that the first look 
at the ballots shall be “no earlier than seven 
o’clock a.m. on election day.” And the hour for this 
“pre-canvas” must be publicly announced at least 
17
48 hours in advance. Then the votes are counted 
on election day. 
51. By removing the ballots for examination 
prior to seven o’clock a.m. on election day, Secretary 
Boockvar created a system whereby local officials 
could review ballots without the proper 
announcements, observation, and security. This 
entire scheme, which was only followed in Democrat 
majority counties, was blatantly illegal in that it 
permitted the illegal removal of ballots from their 
locked containers prematurely.
52. Statewide election officials and local 
election officials in Philadelphia and Allegheny 
Counties, aware of the historical Democrat advantage 
in those counties, violated Pennsylvania’s election 
code and adopted the differential standards favoring 
voters in Philadelphia and Allegheny Counties with 
the intent to favor former Vice President Biden. See
Verified Complaint (Doc. No. 1), Donald J. Trump for 
President, Inc. v. Boockvar, 4:20-cv-02078-MWB (M.D. 
Pa. Nov. 18, 2020) at ¶¶ 3-6, 9, 11, 100-143.
53. Absentee and mail-in ballots in 
Pennsylvania were thus evaluated under an illegal 
standard regarding signature verification. It is now 
impossible to determine which ballots were properly 
cast and which ballots were not.
54. The changed process allowing the curing 
of absentee and mail-in ballots in Allegheny and 
Philadelphia counties is a separate basis resulting in 
an unknown number of ballots being treated in an 
unconstitutional manner inconsistent with 
Pennsylvania statute. Id.
55. In addition, a great number of ballots 
were received after the statutory deadline and yet 
18
were counted by virtue of the fact that Pennsylvania 
did not segregate all ballots received after 8:00 pm on 
November 3, 2020. Boockvar’s claim that only about 
10,000 ballots were received after this deadline has no 
way of being proven since Pennsylvania broke its 
promise to the Court to segregate ballots and comingled perhaps tens, or even hundreds of thousands, 
of illegal late ballots.
56. On December 4, 2020, fifteen members of 
the Pennsylvania House of Representatives led by 
Rep. Francis X. Ryan issued a report to Congressman 
Scott Perry (the “Ryan Report,” App. 139a-144a) 
stating that “[t]he general election of 2020 in 
Pennsylvania was fraught with inconsistencies, 
documented irregularities and improprieties 
associated with mail-in balloting, pre-canvassing, and 
canvassing that the reliability of the mail-in votes in 
the Commonwealth of Pennsylvania is impossible to 
rely upon.” 
57. The Ryan Report’s findings are startling,
including:
• Ballots with NO MAILED date. That total is 
9,005.
• Ballots Returned on or BEFORE the Mailed 
Date. That total is 58,221.
• Ballots Returned one day after Mailed Date. 
That total is 51,200.
Id. 143a.
58. These nonsensical numbers alone total 
118,426 ballots and exceed Mr. Biden’s margin of 
81,660 votes over President Trump. But these 
discrepancies pale in comparison to the discrepancies 
in Pennsylvania’s reported data concerning the 
19
number of mail-in ballots distributed to the 
populace—now with no longer subject to legislated 
mandated signature verification requirements. 
59. The Ryan Report also states as follows:
[I]n a data file received on November 4, 2020, the 
Commonwealth’s PA Open Data sites reported over 
3.1 million mail in ballots sent out. The CSV file 
from the state on November 4 depicts 3.1 million 
mail in ballots sent out but on November 2, the 
information was provided that only 2.7 million 
ballots had been sent out. This discrepancy of 
approximately 400,000 ballots from November 2 to 
November 4 has not been explained.
Id. at 143a-44a. (Emphasis added).
60. These stunning figures illustrate the 
out-of-control nature of Pennsylvania’s mail-in 
balloting scheme. Democrats submitted mail-in 
ballots at more than two times the rate of 
Republicans. This number of constitutionally tainted 
ballots far exceeds the approximately 81,660 votes 
separating the candidates. 
61. This blatant disregard of statutory law 
renders all mail-in ballots constitutionally tainted 
and cannot form the basis for appointing or certifying 
Pennsylvania’s presidential electors to the Electoral 
College.
62. According to the U.S. Election 
Assistance Commission’s report to Congress Election 
Administration and Voting Survey: 2016 
Comprehensive Report, in 2016 Pennsylvania received 
266,208 mail-in ballots; 2,534 of them were rejected 
(.95%). Id. at p. 24. However, in 2020, Pennsylvania 
received more than 10 times the number of mail-in 
ballots compared to 2016. As explained supra, this 
20
much larger volume of mail-in ballots was treated in 
an unconstitutionally modified manner that included: 
(1) doing away with the Pennsylvania’s signature 
verification requirements; (2) extending that deadline 
to three days after Election Day and adopting a 
presumption that even non-postmarked ballots were 
presumptively timely; and (3) blocking poll watchers 
in Philadelphia and Allegheny Counties in violation of 
State law.
63. These non-legislative modifications to 
Pennsylvania’s election rules appear to have 
generated an outcome-determinative number of 
unlawful ballots that were cast in Pennsylvania. 
Regardless of the number of such ballots, the nonlegislative changes to the election rules violated the 
Electors Clause.
State of Georgia
64. Georgia has 16 electoral votes, with a 
statewide vote tally currently estimated at 2,458,121 
for President Trump and 2,472,098 for former Vice 
President Biden, a margin of approximately 12,670 
votes. 
65. The number of votes affected by the 
various constitutional violations exceeds the margin 
of votes dividing the candidates.
66. Georgia’s Secretary of State, Brad 
Raffensperger, without legislative approval, 
unilaterally abrogated Georgia’s statute governing 
the signature verification process for absentee ballots.
67. O.C.G.A. § 21-2-386(a)(2) prohibits the 
opening of absentee ballots until after the polls open 
on Election Day: In April 2020, however, the State 
Election Board adopted Secretary of State Rule 183-1-
14-0.9-.15, Processing Ballots Prior to Election Day. 
21
That rule purports to authorize county election 
officials to begin processing absentee ballots up to 
three weeks before Election Day.
68. Georgia law authorizes and requires a 
single registrar or clerk—after reviewing the outer 
envelope—to reject an absentee ballot if the voter 
failed to sign the required oath or to provide the 
required information, the signature appears invalid, 
or the required information does not conform with the 
information on file, or if the voter is otherwise found 
ineligible to vote. O.C.G.A. § 21-2-386(a)(1)(B)-(C).
69. Georgia law provides absentee voters the 
chance to “cure a failure to sign the oath, an invalid 
signature, or missing information” on a ballot’s outer 
envelope by the deadline for verifying provisional 
ballots (i.e., three days after the election). O.C.G.A. §§ 
21-2-386(a)(1)(C), 21-2-419(c)(2). To facilitate cures, 
Georgia law requires the relevant election official to 
notify the voter in writing: “The board of registrars or 
absentee ballot clerk shall promptly notify the elector 
of such rejection, a copy of which notification shall be 
retained in the files of the board of registrars or 
absentee ballot clerk for at least two years.” O.C.G.A. 
§ 21-2-386(a)(1)(B).
70. On March 6, 2020, in Democratic Party 
of Georgia v. Raffensperger, No. 1:19-cv-5028-WMR 
(N.D. Ga.), Georgia’s Secretary of State entered a 
Compromise Settlement Agreement and Release with 
the Democratic Party of Georgia (the “Settlement”) to 
materially change the statutory requirements for 
reviewing signatures on absentee ballot envelopes to 
confirm the voter’s identity by making it far more 
difficult to challenge defective signatures beyond the 
22
express mandatory procedures set forth at GA. CODE § 
21-2-386(a)(1)(B).
71. Among other things, before a ballot could 
be rejected, the Settlement required a registrar who 
found a defective signature to now seek a review by 
two other registrars, and only if a majority of the 
registrars agreed that the signature was defective 
could the ballot be rejected but not before all three 
registrars’ names were written on the ballot envelope 
along with the reason for the rejection. These 
cumbersome procedures are in direct conflict with 
Georgia’s statutory requirements, as is the 
Settlement’s requirement that notice be provided by 
telephone (i.e., not in writing) if a telephone number 
is available. Finally, the Settlement purports to 
require State election officials to consider issuing 
guidance and training materials drafted by an expert 
retained by the Democratic Party of Georgia. 
72. Georgia’s legislature has not ratified 
these material changes to statutory law mandated by 
the Compromise Settlement Agreement and Release, 
including altered signature verification requirements 
and early opening of ballots. The relevant legislation 
that was violated by Compromise Settlement 
Agreement and Release did not include a severability 
clause.
73. This unconstitutional change in Georgia 
law materially benefitted former Vice President 
Biden. According to the Georgia Secretary of State’s 
office, former Vice President Biden had almost double 
the number of absentee votes (65.32%) as President 
Trump (34.68%). See Cicchetti Decl. at ¶ 25, App. 7a8a.
23
74. The effect of this unconstitutional 
change in Georgia election law, which made it more 
likely that ballots without matching signatures would 
be counted, had a material impact on the outcome of 
the election.
75. Specifically, there were 1,305,659 
absentee mail-in ballots submitted in Georgia in 2020. 
There were 4,786 absentee ballots rejected in 2020. 
This is a rejection rate of .37%. In contrast, in 2016, 
the 2016 rejection rate was 6.42% with 13,677 
absentee mail-in ballots being rejected out of 213,033 
submitted, which more than seventeen times greater
than in 2020. See Cicchetti Decl. at ¶ 24, App. 7a.
76. If the rejection rate of mailed-in absentee 
ballots remained the same in 2020 as it was in 2016, 
there would be 83,517 less tabulated ballots in 2020. 
The statewide split of absentee ballots was 34.68% for 
Trump and 65.2% for Biden. Rejecting at the higher 
2016 rate with the 2020 split between Trump and 
Biden would decrease Trump votes by 28,965 and 
Biden votes by 54,552, which would be a net gain for 
Trump of 25,587 votes. This would be more than 
needed to overcome the Biden advantage of 12,670 
votes, and Trump would win by 12,917 votes. Id. 
Regardless of the number of ballots affected, however, 
the non-legislative changes to the election rules 
violated the Electors Clause. 
State of Michigan
77. Michigan has 16 electoral votes, with a 
statewide vote tally currently estimated at 2,650,695 
for President Trump and 2,796,702 for former Vice 
President Biden, a margin of 146,007 votes. In Wayne 
County, Mr. Biden’s margin (322,925 votes) 
significantly exceeds his statewide lead.
24
78. The number of votes affected by the 
various constitutional violations exceeds the margin 
of votes dividing the candidates. 
79. Michigan’s Secretary of State, Jocelyn 
Benson, without legislative approval, unilaterally 
abrogated Michigan election statutes related to 
absentee ballot applications and signature 
verification. Michigan’s legislature has not ratified 
these changes, and its election laws do not include a 
severability clause.
80. As amended in 2018, the Michigan 
Constitution provides all registered voters the right to
request and vote by an absentee ballot without giving 
a reason. MICH. CONST. art. 2, § 4.
81. On May 19, 2020, however, Secretary 
Benson announced that her office would send 
unsolicited absentee-voter ballot applications by mail 
to all 7.7 million registered Michigan voters prior to 
the primary and general elections. Although her office 
repeatedly encouraged voters to vote absentee 
because of the COVID-19 pandemic, it did not ensure 
that Michigan’s election systems and procedures were 
adequate to ensure the accuracy and legality of the 
historic flood of mail-in votes. In fact, it did the 
opposite and did away with protections designed to 
deter voter fraud.
82. Secretary Benson’s flooding of Michigan 
with millions of absentee ballot applications prior to 
the 2020 general election violated M.C.L. § 168.759(3). 
That statute limits the procedures for requesting an 
absentee ballot to three specified ways:
An application for an absent voter ballot under this 
section may be made in any of the following ways: 
(a) By a written request signed by the voter.
25
(b) On an absent voter ballot application form 
provided for that purpose by the clerk of the city or 
township.
(c) On a federal postcard application.
M.C.L. § 168.759(3) (emphasis added). 
83. The Michigan Legislature thus declined 
to include the Secretary of State as a means for 
distributing absentee ballot applications. Id. § 
168.759(3)(b). Under the statute’s plain language, the 
Legislature explicitly gave only local clerks the power 
to distribute absentee voter ballot applications. Id.
84. Because the Legislature declined to 
explicitly include the Secretary of State as a vehicle 
for distributing absentee ballots applications, 
Secretary Benson lacked authority to distribute even 
a single absentee voter ballot application—much less 
the millions of absentee ballot applications Secretary 
Benson chose to flood across Michigan.
85. Secretary Benson also violated Michigan 
law when she launched a program in June 2020 
allowing absentee ballots to be requested online, 
without signature verification as expressly required 
under Michigan law. The Michigan Legislature did 
not approve or authorize Secretary Benson’s 
unilateral actions.
86. MCL § 168.759(4) states in relevant part: 
“An applicant for an absent voter ballot shall sign the 
application. Subject to section 761(2), a clerk or 
assistant clerk shall not deliver an absent voter ballot 
to an applicant who does not sign the application.”
87. Further, MCL § 168.761(2) states in 
relevant part: “The qualified voter file must be used to 
determine the genuineness of a signature on an 
application for an absent voter ballot”, and if “the 
26
signatures do not agree sufficiently or [if] the 
signature is missing” the ballot must be rejected.
88. In 2016 only 587,618 Michigan voters 
requested absentee ballots. In stark contrast, in 2020, 
3.2 million votes were cast by absentee ballot, about 
57% of total votes cast – and more than five times the 
number of ballots even requested in 2016.
89. Secretary Benson’s unconstitutional 
modifications of Michigan’s election rules resulted in 
the distribution of millions of absentee ballot 
applications without verifying voter signatures as 
required by MCL §§ 168.759(4) and 168.761(2). This 
means that millions of absentee ballots were 
disseminated in violation of Michigan’s statutory 
signature-verification requirements. Democrats in 
Michigan voted by mail at a ratio of approximately 
two to one compared to Republican voters. Thus, 
former Vice President Biden materially benefited 
from these unconstitutional changes to Michigan’s 
election law.
90. Michigan also requires that poll 
watchers and inspectors have access to vote counting 
and canvassing. M.C.L. §§ 168.674-.675. 
91. Local election officials in Wayne County 
made a conscious and express policy decision not to 
follow M.C.L. §§ 168.674-.675 for the opening, 
counting, and recording of absentee ballots. 
92. Michigan also has strict signature 
verification requirements for absentee ballots, 
including that the Elections Department 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 
27
with the signature on file with the State. See MCL § 
168.765a(6).
93. However, Wayne County made the policy 
decision to ignore Michigan’s statutory signatureverification requirements for absentee ballots. Former 
Vice President Biden received approximately 587,074, 
or 68%, of the votes cast there compared to President 
Trump’s receiving approximate 264,149, or 30.59%, of 
the total vote. Thus, Mr. Biden materially benefited 
from these unconstitutional changes to Michigan’s 
election law.
94. Numerous poll challengers and an 
Election Department employee whistleblower have 
testified that the signature verification requirement 
was ignored in Wayne County in a case currently 
pending in the Michigan Supreme Court.4 For 
example, Jesse Jacob, a decades-long City of Detroit 
employee assigned to work in the Elections Department for 
the 2020 election testified that:
Absentee ballots that were received in the mail would 
have the voter’s signature on the envelope. While I 
was at the TCF Center, I was instructed not to look at 
any of the signatures on the absentee ballots, and I 
was instructed not to compare the signature on the 
absentee ballot with the signature on file.5
4 Johnson v. Benson, Petition for Extraordinary Writs & 
Declaratory Relief filed Nov. 26, 2020 (Mich. Sup. Ct.) at ¶¶ 71, 
138-39, App. 25a-51a.
5 Id., Affidavit of Jessy Jacob, Appendix 14 at ¶15, attached at 
App. 34a-36a.
28
95. The TCF was the only facility within 
Wayne County authorized to count ballots for the City 
of Detroit. 
96. These non-legislative modifications to 
Michigan’s election statutes resulted in a number of 
constitutionally tainted votes that far exceeds the 
margin of voters separating the candidates in 
Michigan. 
97. Additional public information confirms 
the material adverse impact on the integrity of the 
vote in Wayne County caused by these 
unconstitutional changes to Michigan’s election law. 
For example, the Wayne County Statement of Votes 
Report lists 174,384 absentee ballots out of 566,694 
absentee ballots tabulated (about 30.8%) as counted 
without a registration number for precincts in the 
City of Detroit. See Cicchetti Decl. at ¶ 27, App. 8a.
The number of votes not tied to a registered voter by 
itself exceeds Vice President Biden’s margin of margin 
of 146,007 votes by more than 28,377 votes.
98. The extra ballots cast most likely 
resulted from the phenomenon of Wayne County 
election workers running the same ballots through a 
tabulator multiple times, with Republican poll 
watchers obstructed or denied access, and election 
officials ignoring poll watchers’ challenges, as 
documented by numerous declarations. App. 25a-51a.
99. In addition, a member of the Wayne 
County Board of Canvassers (“Canvassers Board”), 
William Hartman, determined that 71% of Detroit’s 
Absent Voter Counting Boards (“AVCBs”) were 
unbalanced—i.e., the number of people who checked 
in did not match the number of ballots cast—without 
explanation. Id. at ¶ 29.
29
100. On November 17, 2020, the Canvassers 
Board deadlocked 2-2 over whether to certify the 
results of the presidential election based on numerous 
reports of fraud and unanswered material 
discrepancies in the county-wide election results. A 
few hours later, the Republican Board members 
reversed their decision and voted to certify the results 
after severe harassment, including threats of violence.
101. The following day, the two Republican 
members of the Board rescinded their votes to certify 
the vote and signed affidavits alleging they were 
bullied and misled into approving election results and 
do not believe the votes should be certified until 
serious irregularities in Detroit votes are resolved. See
Cicchetti Decl. at ¶ 29, App. 8a.
102. Regardless of the number of votes that 
were affected by the unconstitutional modification of 
Michigan’s election rules, the non-legislative changes 
to the election rules violated the Electors Clause.
State of Wisconsin
103. Wisconsin has 10 electoral votes, with a 
statewide vote tally currently estimated at 1,610,151 
for President Trump and 1,630,716 for former Vice 
President Biden (i.e., a margin of 20,565 votes). In two 
counties, Milwaukee and Dane, Mr. Biden’s margin 
(364,298 votes) significantly exceeds his statewide 
lead.
104. In the 2016 general election some 
146,932 mail-in ballots were returned in Wisconsin 
out of more than 3 million votes cast.6 In stark 
contrast, 1,275,019 mail-in ballots, nearly a 900 
6 Source: U.S. Elections Project, available at: 
http://www.electproject.org/early_2016. 
30
percent increase over 2016, were returned in the 
November 3, 2020 election.7
105. Wisconsin statutes guard against fraud 
in absentee ballots: “[V]oting by absentee ballot is a 
privilege exercised wholly outside the traditional 
safeguards of the polling place. The legislature finds 
that the privilege of voting by absentee ballot must be 
carefully regulated to prevent the potential for fraud 
or abuse[.]” WISC. STAT. § 6.84(1).
106. In direct contravention of Wisconsin law, 
leading up to the 2020 general election, the Wisconsin 
Elections Commission (“WEC”) and other local 
officials unconstitutionally modified Wisconsin 
election laws—each time taking steps that weakened, 
or did away with, established security procedures put 
in place by the Wisconsin legislature to ensure 
absentee ballot integrity.
107. For example, the WEC undertook a 
campaign to position hundreds of drop boxes to collect 
absentee ballots—including the use of unmanned drop 
boxes.
8
108. The mayors of Wisconsin’s five largest 
cities—Green Bay, Kenosha, Madison, Milwaukee, 
and Racine, which all have Democrat majorities—
joined in this effort, and together, developed a plan 
use purportedly “secure drop-boxes to facilitate return 
7 Source: U.S. Elections Project, available at: 
https://electproject.github.io/Early-Vote-2020G/WI.html.
8 Wisconsin Elections Commission Memoranda, To: All 
Wisconsin Election Officials, Aug. 19, 2020, available at: 
https://elections.wi.gov/sites/elections.wi.gov/files/2020-
08/Drop%20Box%20Final.pdf. at p. 3 of 4.
31
of absentee ballots.” Wisconsin Safe Voting Plan 2020, 
at 4 (June 15, 2020).9
109. It is alleged in an action recently filed in 
the United States District Court for the Eastern 
District of Wisconsin that over five hundred 
unmanned, illegal, absentee ballot drop boxes were 
used in the Presidential election in Wisconsin.10
110. However, the use of any drop box, 
manned or unmanned, is directly prohibited by 
Wisconsin statute. The Wisconsin legislature 
specifically described in the Election Code “Alternate 
absentee ballot site[s]” and detailed the procedure by 
which the governing body of a municipality may 
designate a site or sites for the delivery of absentee 
ballots “other than the office of the municipal clerk or 
board of election commissioners as the location from 
which electors of the municipality may request and 
vote absentee ballots and to which voted absentee 
ballots shall be returned by electors for any election.” 
Wis. Stat. 6.855(1).
111. Any alternate absentee ballot site “shall 
be staffed by the municipal clerk or the executive 
director of the board of election commissioners, or 
employees of the clerk or the board of election 
commissioners.” Wis. Stat. 6.855(3). Likewise, Wis. 
9 Wisconsin Safe Voting Plan 2020 Submitted to the Center 
for Tech & Civic Life, June 15, 2020, by the Mayors of Madison, 
Milwaukee, Racine, Kenosha and Green Bay available at: 
https://www.techandciviclife.org/wpcontent/uploads/2020/07/Approved-Wisconsin-Safe-Voting-Plan2020.pdf. 
10 See Complaint (Doc. No. 1), Donald J. Trump, Candidate for 
President of the United States of America v. The Wisconsin 
Election Commission, Case 2:20-cv-01785-BHL (E.D. Wisc. Dec. 
2, 2020) (Wisconsin Trump Campaign Complaint”) at ¶¶ 188-89.
32
Stat. 7.15(2m) provides, “[i]n a municipality in which 
the governing body has elected to an establish an 
alternate absentee ballot sit under s. 6.855, the 
municipal clerk shall operate such site as though it 
were his or her office for absentee ballot purposes and 
shall ensure that such site is adequately staffed.”
112. Thus, the unmanned absentee ballot 
drop-off sites are prohibited by the Wisconsin 
Legislature as they do not comply with Wisconsin law 
expressly defining “[a]lternate absentee ballot site[s]”. 
Wis. Stat. 6.855(1), (3).
113. In addition, the use of drop boxes for the 
collection of absentee ballots, positioned 
predominantly in Wisconsin’s largest cities, is directly 
contrary to Wisconsin law providing that absentee 
ballots may only be “mailed by the elector, or delivered 
in person to the municipal clerk issuing the ballot or 
ballots.” Wis. Stat. § 6.87(4)(b)1 (emphasis added). 
114. The fact that other methods of delivering 
absentee ballots, such as through unmanned drop 
boxes, are not permitted is underscored by Wis. Stat. 
§ 6.87(6) which mandates that, “[a]ny ballot not 
mailed or delivered as provided in this subsection may 
not be counted.” Likewise, Wis. Stat. § 6.84(2) 
underscores this point, providing that Wis. Stat. § 
6.87(6) “shall be construed as mandatory.” The 
provision continues—“Ballots cast in contravention of 
the procedures specified in those provisions may not 
be counted. Ballots counted in contravention of the 
procedures specified in those provisions may not be 
included in the certified result of any election.” Wis. 
Stat. § 6.84(2) (emphasis added).
115. These were not the only Wisconsin 
election laws that the WEC violated in the 2020 
33
general election. The WEC and local election officials 
also took it upon themselves to encourage voters to 
unlawfully declare themselves “indefinitely 
confined”—which under Wisconsin law allows the 
voter to avoid security measures like signature 
verification and photo ID requirements.
116. Specifically, registering to vote by 
absentee ballot requires photo identification, except 
for those who register as “indefinitely confined” or 
“hospitalized.” WISC. STAT. § 6.86(2)(a), (3)(a). 
Registering for indefinite confinement requires 
certifying confinement “because of age, physical 
illness or infirmity or [because the voter] is disabled 
for an indefinite period.” Id. § 6.86(2)(a). Should 
indefinite confinement cease, the voter must notify 
the county clerk, id., who must remove the voter from 
indefinite-confinement status. Id. § 6.86(2)(b).
117. Wisconsin election procedures for voting 
absentee based on indefinite confinement enable the 
voter to avoid the photo ID requirement and signature 
requirement. Id. § 6.86(1)(ag)/(3)(a)(2).
118. On March 25, 2020, in clear violation of 
Wisconsin law, Dane County Clerk Scott McDonnell 
and Milwaukee County Clerk George Christensen 
both issued guidance indicating that all voters should 
mark themselves as “indefinitely confined” because of 
the COVID-19 pandemic. 
119. Believing this to be an attempt to 
circumvent Wisconsin’s strict voter ID laws, the 
Republican Party of Wisconsin petitioned the 
Wisconsin Supreme Court to intervene. On March 31, 
2020, the Wisconsin Supreme Court unanimously 
confirmed that the clerks’ “advice was legally 
incorrect” and potentially dangerous because “voters 
34
may be misled to exercise their right to vote in ways 
that are inconsistent with WISC. STAT. § 6.86(2).”
120. On May 13, 2020, the Administrator of 
WEC issued a directive to the Wisconsin clerks 
prohibiting removal of voters from the registry for 
indefinite-confinement status if the voter is no longer 
“indefinitely confined.”
121. The WEC’s directive violated Wisconsin 
law. Specifically, WISC. STAT. § 6.86(2)(a) specifically 
provides that “any [indefinitely confined] elector [who] 
is no longer indefinitely confined … shall so notify the 
municipal clerk.” WISC. STAT. § 6.86(2)(b) further 
provides that the municipal clerk “shall remove the 
name of any other elector from the list upon request 
of the elector or upon receipt of reliable information 
that an elector no longer qualifies for the service.”
122. According to statistics kept by the WEC, 
nearly 216,000 voters said they were indefinitely 
confined in the 2020 election, nearly a fourfold 
increase from nearly 57,000 voters in 2016. In Dane 
and Milwaukee counties, more than 68,000 voters 
said they were indefinitely confined in 2020, a fourfold 
increase from the roughly 17,000 indefinitely confined 
voters in those counties in 2016.
123. Under Wisconsin law, voting by absentee 
ballot also requires voters to complete a certification, 
including their address, and have the envelope 
witnessed by an adult who also must sign and indicate
their address on the envelope. See WISC. STAT. § 6.87. 
The sole remedy to cure an “improperly completed 
certificate or [ballot] with no certificate” is for “the 
clerk [to] return the ballot to the elector[.]” Id. § 
6.87(9). “If a certificate is missing the address of a 
35
witness, the ballot may not be counted.” Id. § 6.87(6d) 
(emphasis added).
124. However, in a training video issued April 
1, 2020, the Administrator of the City of Milwaukee 
Elections Commission unilaterally declared that a 
“witness address may be written in red and that is 
because we were able to locate the witnesses’ address 
for the voter” to add an address missing from the 
certifications on absentee ballots. The Administrator’s 
instruction violated WISC. STAT. § 6.87(6d). The WEC 
issued similar guidance on October 19, 2020, in 
violation of this statute as well.
125. In the Wisconsin Trump Campaign 
Complaint, it is alleged, supported by the sworn 
affidavits of poll watchers, that canvas workers 
carried out this unlawful policy, and acting pursuant 
to this guidance, in Milwaukee used red-ink pens to 
alter the certificates on the absentee envelope and 
then cast and count the absentee ballot. These acts 
violated WISC. STAT. § 6.87(6d) (“If a certificate is 
missing the address of a witness, the ballot may not 
be counted”). See also WISC. STAT. § 6.87(9) (“If a 
municipal clerk receives an absentee ballot with an 
improperly completed certificate or with no certificate, 
the clerk may return the ballot to the elector . . . 
whenever time permits the elector to correct the defect 
and return the ballot within the period authorized.”).
126. Wisconsin’s legislature has not ratified 
these changes, and its election laws do not include a 
severability clause.
127. In addition, 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, testified 
36
that USPS employees were backdating ballots 
received after November 3, 2020. Decl. of Ethan J. 
Pease at ¶¶ 3-13. Further, Pease testified how a 
senior USPS employee told him on November 4, 2020
that “[a]n order came down from the 
Wisconsin/Illinois Chapter of the Postal Service that 
100,000 ballots were missing” and how the USPS 
dispatched employees to “find[] . . . the ballots.” Id. ¶¶
8-10. One hundred thousand ballots supposedly 
“found” after election day would far exceed former 
Vice President Biden margin of 20,565 votes over 
President Trump.
COUNT I: ELECTORS CLAUSE
128. Plaintiff State repeats and re-alleges the 
allegations above, as if fully set forth herein.
129. The Electors Clause of Article II, Section 
1, Clause 2, of the Constitution makes clear that only 
the legislatures of the States are permitted to 
determine the rules for appointing presidential 
electors. The pertinent rules here are the state 
election statutes, specifically those relevant to the 
presidential election.
130. Non-legislative actors lack authority to 
amend or nullify election statutes. Bush II, 531 U.S. 
at 104 (quoted supra).
131. Under Heckler v. Chaney, 470 U.S. 821, 
833 n.4 (1985), conscious and express executive 
policies—even if unwritten—to nullify statutes or to 
abdicate statutory responsibilities are reviewable to 
the same extent as if the policies had been written or 
adopted. Thus, conscious and express actions by State 
or local election officials to nullify or ignore 
requirements of election statutes violate the Electors 
37
Clause to the same extent as formal modifications by 
judicial officers or State executive officers.
132. The actions set out in Paragraphs 41-128
constitute non-legislative changes to State election 
law by executive-branch State election officials, or by 
judicial officials, in Defendant States Pennsylvania, 
Georgia, Michigan, and Wisconsin, in violation of the 
Electors Clause.
133. Electors appointed to Electoral College 
in violation of the Electors Clause cannot cast 
constitutionally valid votes for the office of President.
COUNT II: EQUAL PROTECTION
134. Plaintiff State repeats and re-alleges the 
allegations above, as if fully set forth herein.
135. The Equal Protection Clause prohibits 
the use of differential standards in the treatment and 
tabulation of ballots within a State. Bush II, 531 U.S. 
at 107.
136. The one-person, one-vote principle 
requires counting valid votes and not counting invalid 
votes. Reynolds, 377 U.S. at 554-55; Bush II, 531 U.S. 
at 103 (“the votes eligible for inclusion in the 
certification are the votes meeting the properly 
established legal requirements”).
137. The actions set out in Paragraphs 66-73
(Georgia), 80-93 (Michigan), 44-55 (Pennsylvania), 
and 106-24 (Wisconsin) created differential voting 
standards in Defendant States Pennsylvania, 
Georgia, Michigan, and Wisconsin in violation of the 
Equal Protection Clause.
138. The actions set out in Paragraphs 66-73
(Georgia), 80-93 (Michigan), 44-55 (Pennsylvania), 
and 106-24 (Wisconsin) violated the one-person, one-
38
vote principle in Defendant States Pennsylvania, 
Georgia, Michigan, and Wisconsin.
139. By the shared enterprise of the entire 
nation electing the President and Vice President, 
equal protection violations in one State can and do 
adversely affect and diminish the weight of votes cast 
in States that lawfully abide by the election structure 
set forth in the Constitution. Plaintiff State is 
therefore harmed by this unconstitutional conduct in 
violation of the Equal Protection or Due Process 
Clauses.
COUNT III: DUE PROCESS
140. Plaintiff State repeats and re-alleges the 
allegations above, as if fully set forth herein.
141. When election practices reach “the point 
of patent and fundamental unfairness,” the integrity 
of the election itself violates substantive due process. 
Griffin v. Burns, 570 F.2d 1065, 1077 (1st Cir. 1978); 
Duncan v. Poythress, 657 F.2d 691, 702 (5th Cir. 
1981); Florida State Conference of N.A.A.C.P. v. 
Browning, 522 F.3d 1153, 1183-84 (11th Cir. 2008); 
Roe v. State of Ala. By & Through Evans, 43 F.3d 574, 
580-82 (11th Cir. 1995); Roe v. State of Ala., 68 F.3d 
404, 407 (11th Cir. 1995); Marks v. Stinson, 19 F. 3d 
873, 878 (3rd Cir. 1994).
142. Under this Court’s precedents on procedural due process, not only intentional failure to follow 
election law as enacted by a State’s legislature but 
also random and unauthorized acts by state election 
officials and their designees in local government can 
violate the Due Process Clause. Parratt v. Taylor, 451 
U.S. 527, 537-41 (1981), overruled in part on other 
grounds by Daniels v. Williams, 474 U.S. 327, 330-31 
(1986); Hudson v. Palmer, 468 U.S. 517, 532 (1984). 
39
The difference between intentional acts and random 
and unauthorized acts is the degree of pre-deprivation 
review.
143. Defendant States acted 
unconstitutionally to lower their election standards—
including to allow invalid ballots to be counted and 
valid ballots to not be counted—with the express 
intent to favor their candidate for President and to 
alter the outcome of the 2020 election. In many 
instances these actions occurred in areas having a 
history of election fraud.
144. The actions set out in Paragraphs 66-73
(Georgia), 80-93 (Michigan), 44-55 (Pennsylvania), 
and 106-24 (Wisconsin) constitute intentional 
violations of State election law by State election 
officials and their designees in Defendant States 
Pennsylvania, Georgia, Michigan, and Wisconsin, in 
violation of the Due Process Clause.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff States respectfully 
request that this Court issue the following relief:
A. Declare that Defendant States 
Pennsylvania, Georgia, Michigan, and Wisconsin 
administered the 2020 presidential election in 
violation of the Electors Clause and the Fourteenth 
Amendment of the U.S. Constitution.
B. Declare that any electoral college votes 
cast by such presidential electors appointed in 
Defendant States Pennsylvania, Georgia, Michigan, 
and Wisconsin are in violation of the Electors Clause 
and the Fourteenth Amendment of the U.S. 
Constitution and cannot be counted.
40
C. Enjoin Defendant States’ use of the 2020 
election results for the Office of President to appoint 
presidential electors to the Electoral College.
D. Enjoin Defendant States’ use of the 2020 
election results for the Office of President to appoint 
presidential electors to the Electoral College and 
authorize, pursuant to the Court’s remedial authority, 
the Defendant States to conduct a special election to 
appoint presidential electors. 
E. If any of Defendant States have already 
appointed presidential electors to the Electoral 
College using the 2020 election results, direct such 
States’ legislatures, pursuant to 3 U.S.C. § 2 and U.S.
CONST. art. II, § 1, cl. 2, to appoint a new set of 
presidential electors in a manner that does not violate 
the Electors Clause and the Fourteenth Amendment, 
or to appoint no presidential electors at all. 
F. Enjoin the Defendant States from 
certifying presidential electors or otherwise meeting 
for purposes of the electoral college pursuant to 3 
U.S.C. § 5, 3 U.S.C. § 7, or applicable law pending 
further order of this Court.
G. Award costs to Plaintiff State.
H. Grant such other relief as the Court 
deems just and proper.
41
December 7, 2020 Respectfully submitted,
Ken Paxton*
Attorney General of Texas
Brent Webster
First Assistant Attorney 
General of Texas
Lawrence Joseph
Special Counsel to the 
Attorney General of Texas
Office of the Attorney General
P.O. Box 12548 (MC 059)
Austin, TX 78711-2548
kenneth.paxton@oag.texas.gov
(512) 936-1414
* Counsel of Record
i
No. ______, 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.
BRIEF IN SUPPORT OF MOTION FOR LEAVE 
TO FILE BILL OF COMPLAINT
Ken Paxton*
Attorney General of Texas
Brent Webster
First Assistant Attorney 
General of Texas
Lawrence Joseph
Special Counsel to the 
Attorney General of Texas
P.O. Box 12548 (MC 059)
Austin, TX 78711-2548
kenneth.paxton@oag.texas.gov
(512) 936-1414
*Counsel of Record
ii
TABLE OF CONTENTS
Pages
Table of Authorities................................................... iv
Brief in Support of Motion for Leave to File ............. 1
Statement of the Case................................................ 1
Constitutional Background ................................. 4
Non-Legislative Changes Made in Violation 
of the Electors Clause.................................... 5
Standard of Review .................................................... 6
Argument.................................................................... 7
I. This Court has jurisdiction over Plaintiff 
States’ claims. ...................................................... 7
A. The claims fall within this Court’s 
constitutional and statutory subjectmatter jurisdiction......................................... 7
B. The claims arise under the Constitution...... 8
C. The claims raise a “case or controversy” 
between the States. ..................................... 11
1. Plaintiff States suffer an injury in 
fact. .................................................. 12
2. Defendant States caused the injuries. . 15
3. The requested relief would redress 
the injuries. ........................................... 15
D. This action is not moot and will not 
become moot................................................. 17
E. This matter is ripe for review. .................... 18
F. This action does not raise a nonjusticiable political question. ...................... 19
G. No adequate alternate remedy or forum 
exists. ........................................................... 20
iii
II. This case presents constitutional questions of 
immense national consequence that warrant 
this Court’s discretionary review. ..................... 22
A. The 2020 election suffered from serious 
irregularities that constitutionally 
prohibit using the reported results............. 24
1. Defendant States violated the 
Electors Clause by modifying their 
legislatures’ election laws through 
non-legislative action............................ 25
2. State and local administrator’s 
systemic failure to follow State 
election qualifies as an unlawful 
amendment of State law....................... 28
3. Defendant States’ administration of 
the 2020 election violated the 
Fourteenth Amendment. ...................... 29
B. A ruling on the 2020 election would 
preserve the Constitution and help 
prevent irregularities in future elections. .. 33
III. Review is not discretionary. .............................. 34
IV. This case warrants summary disposition or 
expedited briefing. ............................................. 34
Conclusion ................................................................ 35
iv
TABLE OF AUTHORITIES
Pages
Cases
Anderson v. Celebrezze, 460 U.S. 780 (1983)........... 11
Anderson v. United States, 417 U.S. 211 (1974) . 4, 12
Baer v. Meyer, 728 F.2d 471 (10th Cir. 1984).......... 29
Baker v. Carr, 369 U.S. 186 (1962)......... 4, 12, 19-120
Barr v. Chatman, 397 F.2d 515 (7th Cir. 1968)...... 29
Bell v. Hood, 327 U.S. 678 (1946) ............................ 10
Brown v. O’Brien, 469 F.2d 563 (D.C. Cir.)............. 31
Burdick v. Takushi, 504 U.S. 428 (1992) ................ 26
Bush v. Gore, 531 U.S. 98 (2000) ......................passim
Bush v. Palm Beach Cty. Canvassing Bd., 531 
U.S. 70 (2000)................................ 4, 10, 16, 21, 25
California v. United States, 457 U.S. 273 (1982).... 35
City of Boerne v. Flores, 521 U.S. 507 (1997) .......... 16
City of Chicago v. Int’l Coll. of Surgeons, 522 U.S. 
156 (1997).............................................................. 9
Coleman v. Miller, 307 U.S. 433 (1939)................... 14
Cook v. Gralike, 531 U.S. 510 (2001)....................... 10
Crawford v. Marion County Election Bd.,
553 U.S. 181 (2008)............................................... 6
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 
(2006)................................................................... 15
Dep’t of Homeland Sec. v. New York, 140 S. Ct. 
599 (2020)............................................................ 27
Duke Power Co. v. Carolina Envtl. Study Group, 
Inc., 438 U.S. 59 (1978)....................................... 15
Duncan v. Poythress, 657 F.2d 691 
(5th Cir. 1981)..................................................... 31
v
Dunn v. Blumstein, 405 U.S. 330 (1972) ................. 12
FEC v. Akins, 524 U.S. 11 (1998) ............................ 17
FEC v. Wisconsin Right to Life, Inc., 551 U.S. 
449 (2007)............................................................ 18
Florida State Conference of N.A.A.C.P. v. 
Browning, 522 F.3d 1153 (11th Cir. 2008)......... 31
Foman v. Davis, 371 U.S. 178 (1962) ........................ 7
Foster v. Chatman, 136 S.Ct. 1737 (2016)................. 8
Fox Film Corp. v. Muller, 296 U.S. 207 (1935) ......... 9
Free Enter. Fund v. Pub. Co. Accounting 
Oversight Bd., 561 U.S. 477 (2010) .................... 27
Gasser Chair Co. v. Infanti Chair Mfg. Corp., 
60 F.3d 770 (Fed. Cir. 1995) ............................... 19
Grayned v. City of Rockford,
408 U.S. 104 (1972)............................................. 27
Griffin v. Burns, 570 F.2d 1065 
(1st Cir. 1978)...................................................... 31
Harris v. Conradi, 675 F.2d 1212 
(11th Cir. 1982) ................................................... 29
Heckler v. Chaney, 470 U.S. 821 (1985)................... 28
Hernandez v. Mesa, 137 S.Ct. 2003 (2017)................ 7
Hudson v. Palmer, 468 U.S. 517 (1984)................... 32
Hunter v. Hamilton Cty. Bd. of Elections, 
635 F.3d 219 (6th Cir. 2011)......................... 23, 32
Lance v. Coffman, 549 U.S. 437 (2007) ................... 13
Leser v. Garnett, 258 U.S. 130 (1922)...................... 21
Lujan v. Defenders of Wildlife, 
504 U.S. 555 (1992)............................................. 11
Lujan v. Nat’l Wildlife Fed’n, 
497 U.S. 871 (1990)............................................. 18
vi
Marbury v. Madison, 
5 U.S. (1 Cranch) 137 (1803) .............................. 23
Marks v. Stinson, 19 F. 3d 873 
(3rd Cir. 1994)..................................................... 31
Maryland v. Louisiana, 
451 U.S. 725 (1981)............................................. 11
Massachusetts v. Environmental Protection 
Agency, 549 U.S. 497 (2007) ............................... 13
McPherson v. Blacker, 146 U.S. 1 (1892)..... 16, 21, 25
Merrell Dow Pharm., Inc. v. Thompson, 
478 U.S. 804 (1986)............................................... 9
Mesa v. California, 489 U.S. 121 (1989).................... 8
Mississippi v. Louisiana, 506 U.S. 73 (1992) ............ 7
Morton v. Ruiz, 415 U.S. 199 (1974)................... 28-29
Mostyn v. Fabrigas, 98 Eng. Rep. 
1021 (K.B. 1774).................................................. 34
Nebraska v. Colorado, 
136 S.Ct. 1034 (2016).......................................... 34
New Jersey v. New York, 
345 U.S. 369 (1953)............................................. 14
New Mexico v. Colorado, 
137 S.Ct. 2319 (2017).......................................... 34
Norman v. Reed, 502 U.S. 279 (1992)...................... 18
Parratt v. Taylor, 451 U.S. 527 (1981) ............... 31-32
Petrella v. MGM, 572 U.S. 663 (2014)..................... 18
Profitness Physical Therapy Ctr. v. ProFit Orthopedic & Sports Physical Therapy 
P.C., 314 F.3d 62 (2d Cir. 2002) ......................... 19
Purcell v. Gonzalez, 549 U.S. 1 (2006)...... 5, 22, 27-28
vii
Republican Party of Pa. v. Boockvar, 
No. 20-542, 2020 U.S. LEXIS 5188 
(Oct. 28, 2020) ..................................................... 26
Reynolds v. Sims, 377 U.S. 533 
(1964)............................................... 2, 4, 11, 15, 21
Roe v. State of Ala. By & Through Evans, 
43 F.3d 574 (11th Cir. 1995)............................... 31
Roe v. State of Ala., 68 F.3d 404 
(11th Cir. 1995) ................................................... 31
Roman Catholic Diocese of Brooklyn, New York 
v. Cuomo, 592 U.S. ___ (Nov. 25, 2020)........ 25, 31
Rosario v. Rockefeller, 410 U.S. 752 (1973)............. 25
Service v. Dulles, 354 U.S. 363 (1957) ..................... 29
South Carolina v. Katzenbach, 
383 U.S. 301 (1966)............................................. 25
Steel Co. v. Citizens for a Better Env’t., 
523 U.S. 83 (1998)................................................. 7
Tashjian v. Republican Party, 
479 U.S. 208 (1986)............................................. 24
Texas v. United States, 
523 U.S. 296 (1998)............................................. 18
United States Term Limits v. Thornton, 
514 U.S. 779 (1995)............................................. 21
United States v. Nevada, 
412 U.S. 534 (1973)............................................. 20
Wesberry v. Sanders, 376 U.S. 1 (1964)......... 1, 12, 22
What-A-Burger of Va., Inc. v. Whataburger, Inc., 
357 F.3d 441 (4th Cir. 2004)............................... 19
Wisconsin State Legis., No. 20A66, 2020 U.S. 
LEXIS 5187 (Oct. 26, 2020) ................................ 27
Wyoming v. Oklahoma, 502 U.S. 437 (1992)........... 23
viii
Yick Wo v. Hopkins, 118 U.S. 356 (1886) ................ 12
Statutes
U.S. CONST. art. I, § 4.............................................. 3-4
U.S. CONST. art. I, § 4, cl. 1 ..................................... 3-4
U.S. CONST. art. II, § 1, cl. 2 .............................passim
U.S. CONST. art. III.................................... 8, 11-13, 15
U.S. CONST. art. III, § 2.......................................... 1, 7
U.S. CONST. art. V, cl. 3............................................ 13
U.S. CONST. amend. XII ............................................. 6
U.S. CONST. amend. XIV, § 1, cl. 3............ 4, 12, 29-30
U.S. CONST. amend. XIV, § 1, cl. 4............ 4, 12, 29-30
U.S. CONST. amend. XX, § 1....................................... 8
3 U.S.C. § 2 ................................................. 5, 8, 17, 25
3 U.S.C. § 5 ............................................................... 20
3 U.S.C. § 15 ......................................................... 8, 17
28 U.S.C. § 1251(a)............................................... 7, 34
28 U.S.C. § 1331 ......................................................... 9
52 U.S.C. § 20501(b)(1)-(2) ......................................... 2
52 U.S.C. § 20501(b)(3)-(4) ......................................... 2
Rules, Regulations and Orders
S.Ct. Rule 17.2........................................................ 6, 8
S.Ct. Rule 17.3............................................................ 1
FED. R. CIV. P. 15(a)(1)(A) .......................................... 6
FED. R. CIV. P. 15(a)(1)(B) .......................................... 6
FED. R. CIV. P. 15(a)(2) ............................................... 6
Other Authorities
BUILDING CONFIDENCE IN U.S. ELECTIONS: REPORT 
OF THE COMMISSION ON FEDERAL ELECTION 
REFORM (Sept. 2005)............................................. 5
ix
THE FEDERALIST NO. 57 (C. Rossiter, ed. 2003) 
(J. Madison)......................................................... 26
Robert G. Natelson, The Original Scope of the 
Congressional Power to Regulate Elections, 13 
U. PA. J. CONST. L. 1 (2010) ........................... 25-26
J. Story, 1 COMMENTARIES ON THE CONSTITUTION 
OF THE UNITED STATES § 627 (3d ed. 1858) ........ 10
No. ______, 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.
BRIEF IN SUPPORT OF 
MOTION FOR LEAVE TO FILE
Pursuant to S.Ct. Rule 17.3 and U.S. CONST. art. 
III, § 2, the State of Texas (“Plaintiff State”) 
respectfully submits this brief in support of its Motion 
for Leave to File a Bill of Complaint against the 
Commonwealth of Pennsylvania and the States of 
Georgia, Michigan, and Wisconsin (collectively, 
“Defendant States”).
STATEMENT OF THE CASE
Lawful elections are at the heart of our freedoms.
“No right is more precious in a free country than that 
of having a voice in the election of those who make the 
laws under which, as good citizens, we must live. 
Other rights, even the most basic, are illusory if the 
right to vote is undermined.” Wesberry v. Sanders, 376 
U.S. 1, 10 (1964). Trust in the integrity of that process 
2
is the glue that binds our citizenry and the States in 
this Union.
Elections face the competing goals of maximizing 
and counting lawful votes but minimizing and 
excluding unlawful ones. Reynolds v. Sims, 377 U.S. 
533, 554-55 (1964); Bush v. Gore, 531 U.S. 98, 103 
(2000) (“the votes eligible for inclusion in the 
certification are the votes meeting the properly 
established legal requirements”) (“Bush II”); compare
52 U.S.C. § 20501(b)(1)-(2) (2018) with id.
§ 20501(b)(3)-(4). Moreover, “the right of suffrage can 
be denied by a debasement or dilution of the weight of 
a citizen’s vote just as effectively as by wholly 
prohibiting the free exercise of the franchise.”
Reynolds, 377 U.S. at 555. Reviewing election results 
requires not only counting lawful votes but also 
eliminating unlawful ones.
It is an understatement to say that 2020 was not 
a good year. In addition to a divided and partisan 
national mood, the country faced the COVID-19 
pandemic. Certain officials in Defendant States
presented the pandemic as the justification for
ignoring state laws regarding absentee and mail-in 
voting. Defendant States flooded their citizenry with 
tens of millions of ballot applications and ballots 
ignoring statutory controls as to how they were 
received, evaluated, and counted. Whether well 
intentioned or not, these unconstitutional and 
unlawful changes had the same uniform effect—they 
made the 2020 election less secure in Defendant 
States. Those changes were made in violation of 
relevant state laws and were made by non-legislative 
entities, without any consent by the state legislatures.
3
These unlawful acts thus directly violated the 
Constitution. U.S. CONST. art. I, § 4; id. art. II, § 1, cl. 
2.
This case presents a question of law: Did 
Defendant States violate the Electors Clause by 
taking non-legislative actions to change the election 
rules that would govern the appointment of 
presidential electors? Each of these States flagrantly 
violated the statutes enacted by relevant State 
legislatures, thereby violating the Electors Clause of 
Article II, Section 1, Clause 2 of the Constitution. By 
these unlawful acts, Defendant States have not only 
tainted the integrity of their own citizens’ votes, but 
their actions have also debased the votes of citizens in 
the States that remained loyal to the Constitution.
Elections for federal office must comport with 
federal constitutional standards, see Bush II, 531 U.S. 
at 103-105, and executive branch government officials 
cannot subvert these constitutional requirements, no 
matter their stated intent. For presidential elections, 
each State must appoint its electors to the electoral 
college in a manner that complies with the 
Constitution, specifically the Electors Clause 
requirement that only state legislatures may set the 
rules governing the appointment of electors and the 
elections upon which such appointment is based.1
1 Subject to override by Congress, state legislatures have the 
exclusive power to regulate the time, place, and manner for 
electing Members of Congress, see U.S. CONST. art. I, § 4, which 
is distinct from legislatures’ exclusive and plenary authority on 
the appointment of presidential electors. When non-legislative 
actors purport to set state election law for presidential elections, 
they violate both the Elections Clause and the Electors Clause.
4
Constitutional Background
The right to vote is protected by the by the Equal 
Protection Clause and the Due Process Clause. U.S.
CONST. amend. XIV, § 1, cl. 3-4. Because “the right to 
vote is personal,” Reynolds, 377 U.S. at 561-62 (alterations omitted), “[e]very voter in a federal … election, 
whether he votes for a candidate with little chance of 
winning or for one with little chance of losing, has a 
right under the Constitution to have his vote fairly 
counted.” Anderson v. United States, 417 U.S. 211, 227 
(1974); Baker v. Carr, 369 U.S. 186, 208 (1962).
Invalid or fraudulent votes debase or dilute the weight 
of each validly cast vote. Bush II, 531 U.S. at 105. The 
unequal treatment of votes within a state, and 
unequal standards for processing votes raise equal 
protection concerns. Id. Though Bush II did not 
involve an action between States, the concern that 
illegal votes can cancel out lawful votes does not stop 
at a State’s boundary in the context of a Presidential 
election.
The Electors Clause requires that each State 
“shall appoint” its presidential electors “in such 
Manner as the Legislature thereof may direct.” U.S.
CONST. art. II, § 1, cl. 2 (emphasis added); cf. id. art. I, 
§ 4, cl. 1 (similar for time, place, and manner of federal 
legislative elections). “[T]he state legislature’s power 
to select the manner for appointing electors is 
plenary,” Bush II, 531 U.S. at 104 (emphasis added), 
and sufficiently federal for this Court’s review. Bush 
v. Palm Beach Cty. Canvassing Bd., 531 U.S. 70, 76 
(2000) (“Bush I”). This textual feature of our 
Constitution was adopted to ensure the integrity of 
the presidential selection process: “Nothing was more 
5
to be desired than that every practicable obstacle 
should be opposed to cabal, intrigue, and corruption.”
FEDERALIST NO. 68 (Alexander Hamilton). When a 
State conducts a popular election to appoint electors, 
the State must comply with all constitutional 
requirements. Bush II, 531 U.S. at 104. When a State 
fails to conduct a valid election—for any reason—”the 
electors may be appointed on a subsequent day in such 
a manner as the legislature of such State may direct.”
3 U.S.C. § 2 (emphasis added).
Non-Legislative Changes Made in Violation of 
the Electors Clause
As set forth in the Complaint, executive and 
judicial officials made significant changes to the 
legislatively defined election rules in Defendant 
States. See Compl. at ¶¶ 66-73 (Georgia), 80-93
(Michigan), 44-55 (Pennsylvania), 106-24 (Wisconsin).
Taken together, these non-legislative changes did
away with statutory ballot-security measures for 
absentee and mail-in ballots such as signature 
verification, witness requirements, and statutorily
authorized secure ballot drop-off locations.
Citing the COVID-19 pandemic, Defendant States 
gutted the safeguards for absentee ballots through 
non-legislative actions, despite knowledge that 
absentee ballots are “the largest source of potential 
voter fraud,” BUILDING CONFIDENCE IN U.S.
ELECTIONS: REPORT OF THE COMMISSION ON FEDERAL 
ELECTION REFORM, at 46 (Sept. 2005) (hereinafter, 
“CARTER-BAKER”), which is magnified when absentee 
balloting is shorn of ballot-integrity measures such as 
signature verification, witness requirements, or 
outer-envelope protections, or when absentee ballots 
6
are processed and tabulated without bipartisan 
observation by poll watchers.
Without Defendant States’ combined 62 electoral 
votes, President Trump presumably has 232 electoral 
votes, and former Vice President Biden presumably 
has 244. Thus, Defendant States’ presidential electors 
will determine the outcome of the election. 
Alternatively, if Defendant States are unable to 
certify 37 or more presidential electors, neither 
candidate will have a majority in the electoral college, 
in which case the election would devolve to the House 
of Representatives under the Twelfth Amendment.
Defendant States experienced serious voting 
irregularities. See Compl. at ¶¶ 75-76 (Georgia), 97-
101 (Michigan), 55-60 (Pennsylvania), 122-28
(Wisconsin). At the time of this filing, Plaintiff State 
continues to investigate allegations of not only 
unlawful votes being counted but also fraud. Plaintiff 
State reserves the right to seek leave to amend the 
complaint as those investigations resolve. See S.Ct. 
Rule 17.2; FED. R. CIV. P. 15(a)(1)(A)-(B), (a)(2). But 
even the appearance of fraud in a close election is 
poisonous to democratic principles: “Voters who fear 
their legitimate votes will be outweighed by 
fraudulent ones will feel disenfranchised.” Purcell v. 
Gonzalez, 549 U.S. 1, 4 (2006); Crawford v. Marion 
County Election Bd., 553 U.S. 181, 189 (2008) (States 
have an interest in preventing voter fraud and 
ensuring voter confidence).
STANDARD OF REVIEW
This Court considers two primary factors when it 
decides whether to grant a State leave to file a bill of 
complaint against another State: (1) “the nature of the 
7
interest of the complaining State,” and (2) ”the 
availability of an alternative forum in which the issue 
tendered can be resolved.” Mississippi v. Louisiana, 
506 U.S. 73, 77 (1992) (internal quotations omitted) 
Because original proceedings in this Court follow the 
Federal Rules of Civil Procedure, S.Ct. Rule 17.2, the 
facts for purposes of a motion for leave to file are the 
well-pleaded facts alleged in the complaint. 
Hernandez v. Mesa, 137 S.Ct. 2003, 2005 (2017). 
ARGUMENT
I. THIS COURT HAS JURISDICTION OVER 
PLAINTIFF STATE’S CLAIMS.
In order to grant leave to file, this Court first must 
assure itself of its jurisdiction, Steel Co. v. Citizens for 
a Better Env’t., 523 U.S. 83, 95 (1998); cf. Foman v. 
Davis, 371 U.S. 178, 182 (1962) (courts deny leave to 
file amended pleadings that would be futile). That 
standard is met here. Plaintiff State’s fundamental 
rights and interests are at stake. This Court is the 
only venue that can protect Plaintiff State’s electoral 
college votes from being cancelled by the unlawful and 
constitutionally tainted votes cast by electors 
appointed and certified by Defendant States. 
A. The claims fall within this Court’s 
constitutional and statutory subjectmatter jurisdiction.
The federal judicial power extends to 
“Controversies between two or more States.” U.S.
CONST. art. III, § 2, and Congress has placed the 
jurisdiction for such suits exclusively with the 
Supreme Court: “The Supreme Court shall have 
original and exclusive jurisdiction of all controversies 
between two or more States.” 28 U.S.C. § 1251(a) 
8
(emphasis added). This Court not only is a permissible 
court for hearing this action; it is the only court that 
can hear this action quickly enough to render relief 
sufficient to avoid constitutionally tainted votes in the 
electoral college and to place the appointment of 
Defendant States’ electors before their legislatures 
pursuant to 3 U.S.C. § 2 in time for a vote in the House 
of Representatives on January 6, 2021. See 3 U.S.C. § 
15. With that relief in place, the House can resolve the 
election on January 6, 2021, in time for the president 
to be selected by the constitutionally set date of 
January 20. U.S. CONST. amend. XX, § 1.
B. The claims arise under the Constitution.
When States violate their own election laws, they 
may argue that these violations are insufficiently 
federal to allow review in this Court. Cf. Foster v. 
Chatman, 136 S.Ct. 1737, 1745-46 (2016) (this Court 
lacks jurisdiction to review state-court decisions that 
“rest[] on an adequate and independent state law 
ground”). That attempted evasion would fail for two 
reasons. 
First, in the election context, a state-court remedy 
or a state executive’s administrative action purporting 
to alter state election statutes implicates the Electors 
Clause. See Bush II, 531 U.S. at 105. Even a plausible 
federal-law defense to state action arises under 
federal law within the meaning of Article III. Mesa v. 
California, 489 U.S. 121, 136 (1989) (holding that “it 
is the raising of a federal question in the officer’s 
removal petition that constitutes the federal law 
under which the action against the federal officer 
arises for Art. III purposes”). Constitutional arisingunder jurisdiction exceeds statutory federal-question 
9
jurisdiction of federal district courts,2 and—indeed—
we did not even have federal-question jurisdiction 
until 1875. Merrell Dow Pharm., 478 U.S. at 807.
Plaintiff States’ Electoral Clause claims arise under 
the Constitution and so are federal, even if the only 
claim is that Defendant States violated their own 
state election statutes. Moreover, as is explained 
below, Defendant States’ actions injure the interests 
of Plaintiff State in the appointment of electors to the 
electoral college in a manner that is inconsistent with 
the Constitution.
Given this federal-law basis against these state 
actions, the state actions are not “independent” of the 
federal constitutional requirements that provide this 
Court jurisdiction. Fox Film Corp. v. Muller, 296 U.S. 
207, 210-11 (1935); cf. City of Chicago v. Int’l Coll. of 
Surgeons, 522 U.S. 156, 164 (1997) (noting that “even 
though state law creates a party’s causes of action, its 
case might still ‘arise under’ the laws of the United 
States if a well-pleaded complaint established that its 
right to relief under state law requires resolution of a 
substantial question of federal law” and collecting 
cases) (internal quotations and alterations omitted). 
Plaintiff State’s claims therefore fall within this 
Court’s jurisdiction.
Second, state election law is not purely a matter 
of state law because it applies “not only to elections to 
state offices, but also to the election of Presidential 
2 The statute for federal officer removal at issue in Mesa omits 
the well-pleaded complaint rule, id., which is a statutory
restriction on federal question jurisdiction under 28 U.S.C. § 
1331. See Merrell Dow Pharm., Inc. v. Thompson, 478 U.S. 804, 
808 (1986).
10
electors,” meaning that state law operates, in part, “by 
virtue of a direct grant of authority made under Art. 
II, § 1, cl. 2, of the United States Constitution.” Bush 
I, 531 U.S. at 76. Logically, “any state authority to 
regulate election to [federal] offices could not precede 
their very creation by the Constitution,” meaning that 
any “such power had to be delegated to, rather than 
reserved by, the States.” Cook v. Gralike, 531 U.S. 
510, 522 (2001) (internal quotations omitted). “It is no 
original prerogative of State power to appoint a 
representative, a senator, or President for the Union.”
J. Story, 1 COMMENTARIES ON THE CONSTITUTION OF 
THE UNITED STATES § 627 (3d ed. 1858). For these 
reasons, any “significant departure from the 
legislative scheme for appointing Presidential electors 
presents a federal constitutional question.” Bush II, 
531 U.S. at 113 (Rehnquist, C.J., concurring).
Under these circumstances, this Court has the 
power both to review and to remedy a violation of the
Constitution. Significantly, parties do not need 
winning hands to establish jurisdiction. Instead, 
jurisdiction exists when “the right of the petitioners to 
recover under their complaint will be sustained if the 
Constitution and laws of the United States are given 
one construction,” even if the right “will be defeated if 
they are given another.” Bell v. Hood, 327 U.S. 678, 
685 (1946). At least as to jurisdiction, a plaintiff need 
survive only the low threshold that “the alleged claim 
under the Constitution or federal statutes [not] … be 
immaterial and made solely for the purpose of 
obtaining jurisdiction or … wholly insubstantial and 
frivolous.” Id. at 682. The bill of complaint meets that 
test.
11
C. The claims raise a “case or controversy”
between the States.
Like any other action, an original action must 
meet the Article III criteria for a case or controversy: 
“it must appear that the complaining State has 
suffered a wrong through the action of the other State, 
furnishing ground for judicial redress, or is asserting 
a right against the other State which is susceptible of 
judicial enforcement according to the accepted 
principles of the common law or equity systems of 
jurisprudence.” Maryland v. Louisiana, 451 U.S. 725, 
735-36 (1981) (internal quotations omitted). Plaintiff 
State has standing under those rules.3
With voting, “‘the right of suffrage can be denied 
by a debasement or dilution of the weight of a citizen’s 
vote just as effectively as by wholly prohibiting the 
free exercise of the franchise.’” Bush II, 531 U.S. at 
105 (quoting Reynolds, 377 U.S. at 555). In 
presidential elections, “the impact of the votes cast in 
each State is affected by the votes cast for the various 
candidates in other States.” Anderson v. Celebrezze, 
460 U.S. 780, 795 (1983). Thus, votes in Defendant 
States affect the votes in Plaintiff State, as set forth 
in more detail below.
3 At its constitutional minimum, standing doctrine measures 
the necessary effect on plaintiffs under a tripartite test: 
cognizable injury to the plaintiffs, causation by the challenged 
conduct, and redressable by a court. Lujan v. Defenders of 
Wildlife, 504 U.S. 555, 561-62 (1992). The rules for standing in 
state-versus-state actions is the same as the rules in other 
actions under Article III. See Maryland v. Louisiana, 451 U.S. 
725, 736 (1981).
12
1. Plaintiff State suffers an injury in 
fact.
The citizens of Plaintiff State have the right to 
demand that all other States abide by the 
constitutionally set rules in appointing presidential 
electors to the electoral college. “No right is more 
precious in a free country than that of having a voice 
in the election of those who make the laws under 
which, as good citizens, we must live. Other rights, 
even the most basic, are illusory if the right to vote is 
undermined.” Wesberry, 376 U.S. at 10; Yick Wo v. 
Hopkins, 118 U.S. 356, 370 (1886) (“the political 
franchise of voting” is “a fundamental political right, 
because preservative of all rights”). “Every voter in a 
federal … election, whether he votes for a candidate 
with little chance of winning or for one with little 
chance of losing, has a right under the Constitution to 
have his vote fairly counted.” Anderson v. United 
States, 417 U.S. at 227; Baker, 369 U.S. at 208. Put 
differently, “a citizen has a constitutionally protected 
right to participate in elections on an equal basis with 
other citizens in the jurisdiction,” Dunn v. Blumstein, 
405 U.S. 330, 336 (1972), and—unlike the residency 
durations required in Dunn—the “jurisdiction” here is 
the entire United States. In short, the rights at issue 
are congeable under Article III.
Significantly, Plaintiff State presses its own form 
of voting-rights injury as States. As with the oneperson, one-vote principle for congressional 
redistricting in Wesberry, the equality of the States 
arises from the structure of the Constitution, not from 
the Equal Protection or Due Process Clauses. See
Wesberry, 376 U.S. at 7-8; id. n.10 (expressly not 
13
reaching claims under Fourteenth Amendment). 
Whereas the House represents the People 
proportionally, the Senate represents the States. See
U.S. CONST. art. V, cl. 3 (“no state, without its consent, 
shall be deprived of its equal suffrage in the Senate”). 
While Americans likely care more about who is elected 
President, the States have a distinct interest in who 
is elected Vice President and thus who can cast the tiebreaking vote in the Senate. Through that interest, 
States suffer an Article III injury when another State 
violates federal law to affect the outcome of a 
presidential election. This injury is particularly acute 
in 2020, where a Senate majority often will hang on 
the Vice President’s tie-breaking vote because of the 
nearly equal—and, depending on the outcome of 
Georgia run-off elections in January, possibly equal—
balance between political parties. Quite simply, it is 
vitally important to the States who becomes Vice 
President.
Because individual citizens may arguably suffer 
only a generalized grievance from Electors Clause 
violations, States have standing where their citizen 
voters would not, Lance v. Coffman, 549 U.S. 437, 442 
(2007) (distinguishing citizen plaintiffs from citizen 
relators who sued in the name of a state). In 
Massachusetts v. Environmental Protection Agency, 
549 U.S. 497 (2007), this Court held that states 
seeking to protect their sovereign interests are 
“entitled to special solicitude in our standing 
analysis.” Id. at 520. While Massachusetts arose in a 
different context—the same principles of federalism 
apply equally here to require special deference to the 
sovereign states on standing questions.
14
In addition to standing for their own injuries, 
States can assert parens patriae standing for their
citizens who are presidential electors.
4 Like 
legislators, presidential electors assert “legislative 
injury” whenever allegedly improper actions deny 
them a working majority. Coleman v. Miller, 307 U.S. 
433, 435 (1939). The electoral college is a zero-sum 
game. If Defendant States’ unconstitutionally 
appointed electors vote for a presidential candidate 
opposed by the Plaintiff State’s electors, that operates 
to defeat Plaintiff State’s interests.5 Indeed, even 
without an electoral college majority, presidential 
electors suffer the same voting-debasement injury as 
voters generally: “It must be remembered that ‘the 
4 “The ‘parens patriae’ doctrine … is a recognition of the 
principle that the state, when a party to a suit involving a matter 
of sovereign interest, ‘must be deemed to represent all its 
citizens.’” New Jersey v. New York, 345 U.S. 369, 372-73 (1953) 
(quoting Kentucky v. Indiana, 281 U.S. 163, 173 (1930)).
5 Because Plaintiff State appointed its electors consistent 
with the Constitution, they suffer injury if its electors are 
defeated by Defendant States’ unconstitutionally appointed 
electors. This injury is all the more acute because Plaintiff State 
has taken steps to prevent fraud. For example, Texas does not 
allow no excuse vote by mail (Texas Election Code Sections 
82.001-82.004); has strict signature verification procedures (Tex. 
Election Code §87.027(j); Early voting ballot boxes have two locks 
and different keys and other strict security measures (Tex. 
Election Code §§85.032(d) & 87.063); requires voter ID (House 
Comm. on Elections, Bill Analysis, Tex. H.B. 148, 83d R.S. 
(2013)); has witness requirements for assisting those in need 
(Tex. Election Code §§ 86.0052 & 86.0105), and does not allow 
ballot harvesting Tex. Election Code 86.006(f)(1-6). Unlike 
Defendant States, Plaintiff State neither weakened nor allowed 
the weakening of its ballot-integrity statutes by non-legislative 
means.
15
right of suffrage can be denied by a debasement or 
dilution of the weight of a citizen’s vote just as 
effectively as by wholly prohibiting the free exercise of 
the franchise.’” Bush II, 531 U.S. at 105 (quoting 
Reynolds v. Sims, 377 U. S. 533, 555 (1964)) (“Bush 
II”). Finally, once Plaintiff State has standing to 
challenge Defendant States’ unlawful actions, 
Plaintiff State may do so on any legal theory that 
undermines those actions. Duke Power Co. v. Carolina 
Envtl. Study Group, Inc., 438 U.S. 59, 78-81 (1978); 
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 353 & 
n.5 (2006). Injuries to Plaintiff State’s electors serve 
as an Article III basis for a parens patriae action.
2. Defendant States caused the 
injuries.
Non-legislative officials in Defendant States 
either directly caused the challenged violations of the 
Electors Clause or, in the case of Georgia, acquiesced 
to them in settling a federal lawsuit. The Defendants 
thus caused the Plaintiff’s injuries.
3. The requested relief would redress 
the injuries.
This Court has authority to redress Plaintiff 
State’s injuries, and the requested relief will do so.
First, while Defendant States are responsible for 
their elections, this Court has authority to enjoin 
reliance on unconstitutional elections: 
When the state legislature vests the right to 
vote for President in its people, the right to 
vote as the legislature has prescribed is 
fundamental; and one source of its fundamental nature lies in the equal weight 
16
accorded to each vote and the equal dignity 
owed to each voter.
Bush II, 531 U.S. at 104; City of Boerne v. Flores, 521 
U.S. 507, 524 (1997) (“power to interpret the 
Constitution in a case or controversy remains in the 
Judiciary”). Plaintiff State does not ask this Court to 
decide who won the election; they only ask that the 
Court enjoin the clear violations of the Electors Clause 
of the Constitution.
Second, the relief that Plaintiff State requests—
namely, remand to the State legislatures to allocate 
electors in a manner consistent with the 
Constitution—does not violate Defendant States’ 
rights or exceed this Court’s power. The power to 
select electors is a plenary power of the State 
legislatures, and this remains so, without regard to 
state law:
This power is conferred upon the legislatures 
of the States by the Constitution of the United 
States, and cannot be taken from them or 
modified by their State constitutions…. 
Whatever provisions may be made by statute, 
or by the state constitution, to choose electors 
by the people, there is no doubt of the right of 
the legislature to resume the power at any 
time, for it can neither be taken away nor 
abdicated.
McPherson v. Blacker, 146 U.S. 1, 35 (1892) (internal 
quotations omitted); accord Bush I, 531 U.S. at 76-77; 
Bush II, 531 U.S at 104.
Third, uncertainty of how Defendant States’ 
legislatures will allocate their electors is irrelevant to 
the question of redressability:
17
If a reviewing court agrees that the agency 
misinterpreted the law, it will set aside the 
agency’s action and remand the case – even 
though the agency … might later, in the 
exercise of its lawful discretion, reach the 
same result for a different reason.
FEC v. Akins, 524 U.S. 11, 25 (1998). Defendant 
States’ legislatures would remain free to exercise 
their plenary authority under the Electors Clause in 
any constitutional manner they wish. Under Akins, 
the simple act of reconsideration under lawful means 
is redress enough.
Fourth, the requested relief is consistent with 
federal election law: “Whenever any State has held an 
election for the purpose of choosing electors, and has 
failed to make a choice on the day prescribed by law, 
the electors may be appointed on a subsequent day in 
such a manner as the legislature of such State may 
direct.” 3 U.S.C. § 2. Regardless of the statutory 
deadlines for the electoral college to vote, this Court 
could enjoin reliance on the results from the 
constitutionally tainted November 3 election, remand
the appointment of electors to Defendant States, and 
order Defendant States’ legislatures to certify their 
electors in a manner consistent with the Constitution, 
which could be accomplished well in advance of the 
statutory deadline of January 6 for House to count the 
presidential electors’ votes. 3 U.S.C. § 15.
D. This action is not moot and will not 
become moot.
None of the looming election deadlines are 
constitutional, and they all are within this Court’s 
power to enjoin. Indeed, if this Court vacated a State’s 
18
appointment of presidential electors, those electors 
could not vote on December 14, 2020; if the Court 
vacated their vote after the fact, the House of 
Representatives could not count those votes on 
January 6, 2021. Moreover, any remedial action can 
be complete well before January 6, 2020. Indeed, even 
the swearing in of the next President on January 20, 
2021, will not moot this case because review could 
outlast even the selection of the next President under 
“the ‘capable of repetition, yet evading review’
doctrine,” which applies “in the context of election 
cases … when there are ‘as applied’ challenges as well 
as in the more typical case involving only facial 
attacks.” FEC v. Wisconsin Right to Life, Inc., 551 U.S. 
449, 463 (2007) (internal quotations omitted); accord
Norman v. Reed, 502 U.S. 279, 287-88 (1992). 
Mootness is not, and will not become, an issue here.
E. This matter is ripe for review.
Plaintiff State’s claims are clearly ripe now, but 
they were not ripe before the election: “A claim is not 
ripe for adjudication if it rests upon contingent future 
events that may not occur as anticipated, or indeed 
may not occur at all.” Texas v. United States, 523 U.S. 
296, 300 (1998) (internal quotations and citations 
omitted). Prior to the election, there was no reason to 
know who would win the vote in any given State. 
Ripeness also raises the question of laches, which 
Justice Blackmun called “precisely the opposite argument” from ripeness. Lujan v. Nat’l Wildlife Fed’n, 
497 U.S. 871, 915 n.16 (1990) (Blackmun, J., 
dissenting). Laches is an equitable defense against 
unreasonable delay in commencing suit. Petrella v. 
MGM, 572 U.S. 663, 667 (2014). This action was 
19
neither unreasonably delayed nor is prejudicial to 
Defendant States. 
Before the election, Plaintiff States had no ripe 
claim against a Defendant State:
“One cannot be guilty of laches until his right 
ripens into one entitled to protection. For only 
then can his torpor be deemed inexcusable.”
What-A-Burger of Va., Inc. v. Whataburger, Inc., 357 
F.3d 441, 449-50 (4th Cir. 2004) (quoting 5 J. Thomas 
McCarthy, MCCARTHY ON TRADEMARKS AND UNFAIR 
COMPETITION § 31: 19 (4th ed. 2003); Gasser Chair Co. 
v. Infanti Chair Mfg. Corp., 60 F.3d 770, 777 (Fed. Cir. 
1995) (same); Profitness Physical Therapy Ctr. v. ProFit Orthopedic & Sports Physical Therapy P.C., 314 
F.3d 62, 70 (2d Cir. 2002) (same). Plaintiff State could 
not have brought this action before the election 
results. The extent of the county-level deviations from 
election statutes in Defendant States became evident 
well after the election. Neither ripeness nor laches 
presents a timing problem here.
F. This action does not raise a nonjusticiable political question.
The “political questions doctrine” does not apply 
here. Under that doctrine, federal courts will decline 
to review issues that the Constitution delegates to one 
of the other branches—the “political branches”—of 
government. While picking electors involves political 
rights, the Supreme Court has ruled in a line of cases 
beginning with Baker that constitutional claims 
related to voting (other than claims brought under the 
Guaranty Clause) are justiciable in the federal courts. 
As the Court held in Baker, litigation over political 
rights is not the same as a political question:
20
We hold that this challenge to an 
apportionment presents no nonjusticiable 
“political question.” The mere fact that the 
suit seeks protection of a political right does 
not mean it presents a political question. Such 
an objection “is little more than a play upon 
words.”
Baker, 369 U.S. at 209. This is no political question; it 
is a constitutional one that this Court should answer.
G. No adequate alternate remedy or forum 
exists.
In determining whether to hear a case under this 
Court’s original jurisdiction, the Court has considered 
whether a plaintiff State “has another adequate forum 
in which to settle [its] claim.” United States v. Nevada, 
412 U.S. 534, 538 (1973). This equitable limit does not 
apply here because Plaintiff State cannot sue 
Defendant States in any other forum.
To the extent that Defendant States wish to avail 
themselves of 3 U.S.C. § 5’s safe harbor, Bush I, 531 
U.S. at 77-78, this action will not meaningfully stand 
in their way:
The State, of course, after granting the 
franchise in the special context of Article II, 
can take back the power to appoint electors. … 
There is no doubt of the right of the legislature 
to resume the power at any time, for it can 
neither be taken away nor abdicated[.]
Bush II, 531 U.S. at 104 (citations and internal 
quotations omitted).6 Defendant States’ legislature 
6 Indeed, the Constitution also includes another backstop: “if 
no person have such majority [of electoral votes], then from the 
21
will remain free under the Constitution to appoint 
electors or vote in any constitutional manner they 
wish. The only thing that they cannot do—and should 
not wish to do—is to rely on an allocation conducted 
in violation of the Constitution to determine the 
appointment of presidential electors.
Moreover, if this Court agrees with Plaintiff State 
that Defendant States’ appointment of presidential 
electors under the recently conducted elections would 
be unconstitutional, then the statutorily created safe 
harbor cannot be used as a justification for a violation 
of the Constitution. The safe-harbor framework 
created by statute would have to yield in order to 
ensure that the Constitution was not violated.
It is of no moment that Defendants’ state laws may 
purport to tether state legislatures to popular votes. 
Those state limits on a state legislature’s exercising 
federal constitutional functions cannot block action 
because the federal Constitution “transcends any 
limitations sought to be imposed by the people of a 
State” under this Court’s precedents. Leser v. Garnett, 
258 U.S. 130, 137 (1922); see also Bush I, 531 U.S. at 
77; 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”). 
As this Court recognized in McPherson v. Blacker, the 
authority to choose presidential electors: 
persons having the highest numbers not exceeding three on the 
list of those voted for as President, the House of Representatives 
shall choose immediately, by ballot.” U.S. CONST. amend. XII.
22
is conferred upon the legislatures of the states 
by the Constitution of the United States, and 
cannot be taken from them or modified by 
their state constitutions. ... Whatever 
provisions may be made by statute, or by the 
state constitution, to choose electors by the 
people, there is no doubt of the right of the 
legislature to resume the power at any time, for 
it can neither be taken away or abdicated.
146 U.S. 1, 35 (1892) (emphasis added) (internal 
quotations omitted). Defendant States would suffer no 
cognizable injury from this Court’s enjoining their 
reliance on an unconstitutional vote.
II. THIS CASE PRESENTS CONSTITUTIONAL 
QUESTIONS OF IMMENSE NATIONAL 
CONSEQUENCE THAT WARRANT THIS 
COURT’S DISCRETIONARY REVIEW.
Electoral integrity ensures the legitimacy of not 
just our governmental institutions, but the Republic 
itself. See Wesberry, 376 U.S. at 10. “Voters who fear 
their legitimate votes will be outweighed by 
fraudulent ones will feel disenfranchised.” Purcell,
549 U.S. at 4. Against that backdrop, few cases could 
warrant this Court’s review more than this one. In 
addition, the constitutionality of the process for 
selecting the President is of extreme national 
importance. If Defendant States are permitted to 
violate the requirements of the Constitution in the 
appointment of their electors, the resulting vote of the 
electoral college not only lacks constitutional 
legitimacy, but the Constitution itself will be forever 
sullied.
23
Though the Court claims “discretion when 
accepting original cases, even as to actions between 
States where [its] jurisdiction is exclusive,” Wyoming 
v. Oklahoma, 502 U.S. 437, 450 (1992) (internal 
quotations omitted), this is not a case where the Court 
should apply that discretion “sparingly.” Id. While 
Plaintiff State disputes that exercising this Court’s 
original jurisdiction is discretionary, see Section III, 
infra, the clear unlawful abrogation of Defendant 
States’ election laws designed to ensure election 
integrity by a few officials, and examples of material 
irregularities in the 2020 election cumulatively 
warrant this Court’s exercising jurisdiction as this 
Court’s “unsought responsibility to resolve the federal 
and constitutional issues the judicial system has been 
forced to confront.” Bush II, 531 U.S. at 111; see also
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) 
(“It is emphatically the province and duty of the 
judicial department to say what the law is.”). While 
isolated irregularities could be “garden-variety”
election irregularities that do not raise a federal 
question,7 the closeness of the presidential election 
results, combined with the unconstitutional settingaside of state election laws by non-legislative actors
call both the result and the process into question.
7 “To be sure, ‘garden variety election irregularities’ may not 
present facts sufficient to offend the Constitution’s guarantee of 
due process[.]” Hunter v. Hamilton Cty. Bd. of Elections, 635 F.3d 
219, 232 (6th Cir. 2011) (quoting Griffin, 570 F.2d at 1077-79)).
24
A. The 2020 election suffered from serious 
irregularities that constitutionally 
prohibit using the reported results.
Defendant States’ administration of the 2020 
election violated several constitutional requirements 
and, thus, violated the rights that Plaintiff State 
seeks to protect. “When the state legislature vests the 
right to vote for President in its people, the right to 
vote as the legislature has prescribed is fundamental; 
and one source of its fundamental nature lies in the 
equal weight accorded to each vote and the equal 
dignity owed to each voter.” Bush II, 531 U.S. at 104.8
Even a State legislature vested with authority to 
regulate election procedures lacks authority to 
“abridg[e …] fundamental rights, such as the right to 
vote.” Tashjian v. Republican Party, 479 U.S. 208, 217 
(1986). As demonstrated in this section, Defendant 
States’ administration of the 2020 election violated 
the Electors Clause, which renders invalid any 
appointment of electors based upon those election 
results, unless the relevant State legislatures review
and modify or expressly ratify those results as 
sufficient to determine the appointment of electors. 
For example, even without fraud or nefarious intent, 
a mail-in vote not subjected to the State legislature’s 
ballot-integrity measures cannot be counted. 
It does not matter that a judicial or executive 
officer sought to bypass that screening in response to 
the COVID pandemic: the choice was not theirs to 
8 The right to vote is “a fundamental political right, because 
preservative of all rights.” Reynolds, 377 U.S. at 561-62 (internal 
quotations omitted).
25
make. “Government is not free to disregard the [the 
Constitution] in times of crisis.” Roman Catholic 
Diocese of Brooklyn, New York v. Cuomo, 592 U.S. ___ 
(Nov. 25, 2020) (Gorsuch, J., concurring). With all 
unlawful votes discounted, the election result is an 
open question that this Court must address. Under 3 
U.S.C. § 2, the State legislatures may answer the 
question, but the question must be asked here.
1. Defendant States violated the 
Electors Clause by modifying their 
legislatures’ election laws through 
non-legislative action.
The Electors Clause grants authority to state 
legislatures under both horizontal and vertical 
separation of powers. It provides authority to each 
State—not to federal actors—the authority to dictate 
the manner of selecting presidential electors. And 
within each State, it explicitly allocates that authority 
to a single branch of State government: to the 
“Legislature thereof.” U.S. CONST. art. II, § 1, cl. 2. 
State legislatures’ primacy vis-à-vis non-legislative 
actors—whether State or federal—is even more 
significant than congressional primacy vis-à-vis State 
legislatures. 
The State legislatures’ authority is plenary. Bush 
II, 531 U.S. at 104. It “cannot be taken from them or 
modified” even through “their state constitutions.”
McPherson, 146 U.S. at 35; Bush I, 531 U.S at 76-77; 
Bush II, 531 U.S at 104. The Framers allocated 
election authority to State legislatures as the branch 
closest—and most accountable—to the People. See, 
e.g., Robert G. Natelson, The Original Scope of the 
Congressional Power to Regulate Elections, 13 U. PA.
26
J. CONST. L. 1, 31 (2010) (collecting Founding-era 
documents); cf. THE FEDERALIST NO. 57, at 350 (C. 
Rossiter, ed. 2003) (J. Madison) (“House of 
Representatives is so constituted as to support in its 
members a habitual recollection of their dependence 
on the people”). Thus, only the State legislatures are 
permitted to create or modify the respective State’s 
rules for the appointment of presidential electors. U.S.
CONST. art. II, § 1, cl. 2.
“[T]here must be a substantial regulation of 
elections if they are to be fair and honest and if some 
sort of order, rather than chaos, is to accompany the 
democratic processes.” Burdick v. Takushi, 504 U.S. 
428, 433 (1992) (interior quotations omitted). Thus, 
for example, deadlines are necessary, even if some 
votes sent via absentee ballot do not arrive timely. 
Rosario v. Rockefeller, 410 U.S. 752, 758 (1973). Even 
more importantly in this pandemic year with 
expanded mail-in voting, ballot-integrity measures—
e.g., witness requirements, signature verification, and 
the like—are an essential component of any 
legislative expansion of mail-in voting. See CARTERBAKER, at 46 (absentee ballots are “the largest source 
of potential voter fraud”). Though it may be tempting 
to permit a breakdown of the constitutional order in 
the face of a global pandemic, the rule of law demands 
otherwise.
Specifically, because the Electors Clause makes 
clear that state legislative authority is exclusive, nonlegislative actors lack authority to amend statutes. 
Republican Party of Pa. v. Boockvar, No. 20-542, 2020 
U.S. LEXIS 5188, at *4 (Oct. 28, 2020) (“there is a 
strong likelihood that the State Supreme Court 
27
decision violates the Federal Constitution”) (Alito, J., 
concurring); Wisconsin State Legis., No. 20A66, 2020 
U.S. LEXIS 5187, at *11-14 (Oct. 26, 2020) 
(Kavanaugh, J., concurring in denial of application to 
vacate stay); cf. Grayned v. City of Rockford, 408 U.S. 
104, 110 (1972) (“it is not within our power to construe 
and narrow state laws”); Free Enter. Fund v. Pub. Co. 
Accounting Oversight Bd., 561 U.S. 477, 509-10 (2010) 
(“editorial freedom … [to “blue-pencil” statutes] 
belongs to the Legislature, not the Judiciary”). That 
said, courts can enjoin elections or even enforcement 
of unconstitutional election laws, but they cannot 
rewrite the law in federal presidential elections.
For example, if a state court enjoins or modifies 
ballot-integrity measures adopted to allow absentee 
or mail-in voting, that invalidates ballots cast under 
the relaxed standard unless the legislature has—prior 
to the election—ratified the new procedure. Without 
pre-election legislative ratification, results based on 
the treatment and tabulation of votes done in 
violation of state law cannot be used to appoint 
presidential electors.
Elections must be lawful contests, but they should 
not be mere litigation contests where the side with the 
most lawyers wins. As with the explosion of nationwide injunctions, the explosion of challenges to State 
election law for partisan advantage in the lead-up to 
the 2020 election “is not normal.” Dep’t of Homeland 
Sec. v. New York, 140 S. Ct. 599, 600 (2020) (Gorsuch, 
J., concurring in the grant of stay). Nor is it healthy. 
Under the “Purcell principle,” federal courts generally 
avoid enjoining state election laws in the period close 
to an election. Purcell, 549 U.S. at 4-5 (citing “voter 
28
confusion and consequent incentive to remain away 
from the polls”). Purcell raises valid concerns about 
confusion in the run-up to elections, but judicial 
election-related injunctions also raise post-election
concerns. For example, if a state court enjoins ballotintegrity measures adopted to secure absentee or 
mail-in voting, that invalidates ballots cast under the 
relaxed standard unless the State legislature has had 
time to ratify the new procedure. Without either preelection legislative ratification or a severability clause 
in the legislation that created the rules for absentee 
voting by mail, the state court’s actions operate to 
violate the Electors Clause.
2. State and local administrator’s 
systemic failure to follow State 
election qualifies as an unlawful 
amendment of State law.
When non-legislative state and local executive 
actors engage in systemic or intentional failure to 
comply with their State’s duly enacted election laws, 
they adopt by executive fiat a de facto equivalent of an 
impermissible amendment of State election law by an 
executive or judicial officer. See Section II.A.1, supra.
This Court recognizes an executive’s “consciously and 
expressly adopt[ing] a general policy that is so 
extreme as to amount to an abdication of its statutory 
responsibilities” as another form of reviewable final 
action, even if the policy is not a written policy. 
Heckler v. Chaney, 470 U.S. 821, 833 n.4 (1985) 
(interior quotations omitted); accord id. at 839 
(Brennan, J., concurring). Without a bona fide
amendment to State election law by the legislature, 
executive officers must follow state law. Cf. Morton v. 
29
Ruiz, 415 U.S. 199, 235 (1974); Service v. Dulles, 354 
U.S. 363, 388-89 (1957). The wrinkle here is that the 
non-legislative actors lack the authority under the 
federal Constitution to enact a bona fide amendment, 
regardless of whatever COVID-related emergency 
power they may have.
This form of executive nullification of state law by 
statewide, county, or city officers is a variant of 
impermissible amendment by a non-legislative actor. 
See Section II.A.1, supra. Such nullification is always
unconstitutional, but it is especially egregious when it 
eliminates legislative safeguards for election integrity 
(e.g., signature and witness requirements for absentee 
ballots, poll watchers9). Systemic failure by statewide, 
county, or city election officials to follow State election 
law is no more permissible than formal amendments 
by an executive or judicial actor.
3. Defendant States’ administration of 
the 2020 election violated the 
Fourteenth Amendment.
In each of Defendant States, important rules 
governing the sending, receipt, validity, and counting 
of ballots were modified in a manner that varied from 
county to county. These variations from county to 
county violated the Equal Protection Clause, as this 
9 Poll watchers are “prophylactic measures designed to prevent election fraud,” Harris v. Conradi, 675 F.2d 1212, 1216 n.10 
(11th Cir. 1982), and “to insure against tampering with the 
voting process.” Baer v. Meyer, 728 F.2d 471, 476 (10th Cir. 
1984). For example, poll monitors reported that 199 Chicago 
voters cast 300 party-line Democratic votes, as well as three 
party-line Republican votes in one election. Barr v. Chatman,
397 F.2d 515, 515-16 & n.3 (7th Cir. 1968).
30
Court explained at length in Bush II. Each vote must 
be treated equally. “When the state legislature vests 
the right to vote for President in its people, the right 
to vote as the legislature has prescribed is 
fundamental; and one source of its fundamental 
nature lies in the equal weight accorded to each vote 
and the equal dignity owed to each voter.” Bush II, 531 
U.S. at 104. The Equal Protection Clause demands 
uniform “statewide standards for determining what is 
a legal vote.” Id. at 110.
Differential intrastate voting standards are 
“hostile to the one man, one vote basis of our 
representative government.” Bush II, 531 U.S. at 107 
(internal quotations omitted). These variations from 
county to county also appear to have operated to affect 
the election result. For example, the obstruction of 
poll-watcher requirements that occurred in 
Michigan’s Wayne County may have contributed to 
the unusually high number of more than 173,000 
votes which are not tied to a registered voter and that 
71 percent of the precincts are out of balance with no 
explanation. Compl. ¶ 97.
Regardless of whether the modification of legal 
standards in some counties in Defendant States tilted 
the election outcome in those States, it is clear that 
the standards for determining what is a legal vote 
varied greatly from county to county. That constitutes 
a clear violation of the Equal Protection Clause; and 
it calls into question the constitutionality of any 
Electors appointed by Defendant States based on such 
an unconstitutional election.
The Fourteenth Amendment’s due process clause 
protects the fundamental right to vote against “[t]he 
31
disenfranchisement of a state electorate.” Duncan v. 
Poythress, 657 F.2d 691, 702 (5th Cir. 1981). 
Weakening or eliminating signature-validating 
requirements, then restricting poll watchers also 
undermines the 2020 election’s integrity—especially 
as practiced in urban centers with histories of 
electoral fraud—also violates substantive due process. 
Griffin v. Burns, 570 F.2d 1065, 1077 (1st Cir. 1978) 
(“violation of the due process clause may be indicated”
if “election process itself reaches the point of patent 
and fundamental unfairness”); see also Florida State 
Conference of N.A.A.C.P. v. Browning, 522 F.3d 1153, 
1183-84 (11th Cir. 2008); Roe v. State of Ala. By & 
Through Evans, 43 F.3d 574, 580-82 (11th Cir. 1995); 
Roe v. State of Ala., 68 F.3d 404, 407 (11th Cir. 1995); 
Marks v. Stinson, 19 F. 3d 873, 878 (3rd Cir. 1994). 
Defendant States made concerted efforts to weaken or 
nullify their legislatures’ ballot-integrity measures for 
the unprecedented deluge of mail-in ballots, citing the 
COVID-19 pandemic as a rationale. But “Government 
is not free to disregard the [the Constitution] in times 
of crisis.” Roman Catholic Diocese of Brooklyn, 592 
U.S. at ___ (Gorsuch, J., concurring).
Similarly, failing to follow procedural requirements for amending election standards violates 
procedural due process. Brown v. O’Brien, 469 F.2d 
563, 567 (D.C. Cir.), vacated as moot, 409 U.S. 816 
(1972). Under this Court’s precedents on procedural 
due process, not only intentional failure to follow 
election law as enacted by a State’s legislature but 
also random and unauthorized acts by state election 
officials and their designees in local government can 
violate the Due Process Clause. Parratt v. Taylor, 451 
32
U.S. 527, 537-41 (1981), overruled in part on other 
grounds by Daniels v. Williams, 474 U.S. 327, 330-31 
(1986); Hudson v. Palmer, 468 U.S. 517, 532 (1984). 
Here, the violations all were intentional, even if done 
for the reason of addressing the COVID-19 pandemic.
While Plaintiff State disputes that exercising this 
Court’s original jurisdiction is discretionary, see
Section III, infra, the clear unlawful abrogation of 
Defendant States’ election laws designed to ensure 
election integrity by a few officials, and examples of 
material irregularities in the 2020 election 
cumulatively warrant exercising jurisdiction.
Although isolated irregularities could be “gardenvariety” election disputes that do not raise a federal 
question,10 the closeness of election results in swing 
states combines with unprecedented expansion in the 
use of fraud-prone mail-in ballots—millions of which 
were also mailed out—and received and counted—
without verification—often in violation of express 
state laws by non-legislative actors, see Sections 
II.A.1-II.A.2, supra, call both the result and the 
process into question. For an office as important as the 
presidency, these clear violations of the Constitution, 
coupled with a reasonable inference of unconstitutional ballots being cast in numbers that far exceed 
the margin of former Vice President Biden’s vote tally 
over President Trump demands the attention of this 
Court.
10 “To be sure, ‘garden variety election irregularities’ may not 
present facts sufficient to offend the Constitution’s guarantee of 
due process[.]” Hunter, 635 F.3d at 232 (quoting Griffin, 570 F.2d 
at 1077-79)).
33
While investigations into allegations of unlawful 
votes being counted and fraud continue, even the 
appearance of fraud in a close election would justify 
exercising the Court’s discretion to grant the motion 
for leave to file. Regardless, Defendant States’ 
violations of the Constitution would warrant this 
Court’s review, even if no election fraud had resulted.
B. A ruling on the 2020 election would 
preserve the Constitution and help 
prevent irregularities in future 
elections.
In addition to ensuring that the 2020 presidential 
election is resolved in a manner consistent with the 
Constitution, this Court must review the violations 
that occurred in Defendant States to enable Congress 
and State legislatures to avoid future chaos and 
constitutional violations. Unless this Court acts to 
review this presidential election, these 
unconstitutional and unilateral violations of state 
election laws will continue in the future.
Regardless of how the 2020 election resolves and 
whatever this Court does with respect to the 2020 
election, it is imperative for our system of government 
that elections follow the clear constitutional mandates 
for all future elections. Just as this Court in Bush II
provided constitutional guidance to all states 
regarding the equal treatment of ballots from county 
to county in 2000, this Court should now provide a 
clear statement that non-legislative modification of 
rules governing presidential elections violate the 
Electors Clause. Such a ruling will discourage in the 
future the kind of non-legislative election 
modifications that proliferated in 2020.
34
III. REVIEW IS NOT DISCRETIONARY.
Although this Court’s original jurisdiction precedents would justify the Court’s hearing this matter 
under the Court’s discretion, see Section II, supra, 
Plaintiff State respectfully submits that the Court’s 
review is not discretionary. To the contrary, the plain 
text of § 1251(a) provides exclusive jurisdiction, not 
discretionary jurisdiction. See 28 U.S.C. § 1251(a). In 
addition, no other remedy exists for these interstate 
challenges, see Section I.G, supra, and some court
must have jurisdiction for these weighty issues. See
Mostyn v. Fabrigas, 98 Eng. Rep. 1021, 1028 (K.B. 
1774) (“if there is no other mode of trial, that alone 
will give the King’s courts a jurisdiction”). As 
individual Justices have concluded, the issue “bears 
reconsideration.” Nebraska v. Colorado, 136 S.Ct. 
1034, 1035 (2016) (Thomas, J., dissenting, joined by 
Alito, J.); accord New Mexico v. Colorado, 137 S.Ct. 
2319 (2017) (Thomas, J., dissenting) (same). Plaintiff 
State respectfully submits that that reconsideration 
would be warranted to the extent that the Court does 
not elect to hear this matter in its discretion. 
IV. THIS CASE WARRANTS SUMMARY 
DISPOSITION OR EXPEDITED BRIEFING.
The issues presented here are neither fact-bound 
nor complex, and their vital importance urgently 
needs a resolution. Plaintiff State will move this Court 
for expedited consideration but also suggest that this 
case is a prime candidate for summary disposition 
because the material facts—namely, that the COVID19 pandemic prompted non-legislative actors to 
unlawfully modify Defendant States’ election laws,
and carry out an election in violation of basic voter 
35
integrity statutes—are not in serious dispute. 
California v. United States, 457 U.S. 273, 278 (1982); 
South Carolina v. Katzenbach, 383 U.S. 301, 307 
(1966). This case presents a pure and straightforward 
question of law that requires neither finding 
additional facts nor briefing beyond the threshold 
issues presented here.
CONCLUSION
Leave to file the Bill of Complaint should be 
granted.
December 7, 2020 Respectfully submitted,
Ken Paxton*
Attorney General of Texas
Brent Webster
First Assistant Attorney 
General of Texas
Lawrence Joseph
Special Counsel to the 
Attorney General of Texas
Office of the Attorney General
P.O. Box 12548 (MC 059)
Austin, TX 78711-2548
kenneth.paxton@oag.texas.gov
(512) 936-1414
* Counsel of Record
1
No. 20A , Original
In the Supreme Court of the United States
___________________________________________
STATE OF TEXAS,
Plaintiff,
v.
COMMONWEALTH OF PENNSYLVANIA, STATE OF GEORGIA,
STATE OF MICHIGAN, AND STATE OF WISCONSIN,
Defendants.
___________________________________________
MOTION FOR EXPEDITED CONSIDERATION OF THE 
MOTION FOR LEAVE TO FILE A BILL OF COMPLAINT AND 
FOR EXPEDITION OF ANY PLENARY CONSIDERATION OF 
THE MATTER ON THE PLEADINGS IF PLAINTIFFS’ 
FORTHCOMING MOTION FOR INTERIM RELIEF IS NOT 
GRANTED
The State of Texas (“Plaintiff State”) hereby moves, pursuant to Supreme 
Court Rule 21, for expedited consideration of the motion for leave to file a bill of 
complaint, filed today, in an original action on the administration of the 2020 
presidential election by defendants Commonwealth of Pennsylvania, et al.
(collectively, “Defendant States”). The relevant statutory deadlines for the 
defendants’ action based on unconstitutional election results are imminent:
(a) December 8 is the safe harbor for certifying presidential electors, 3 U.S.C. § 5; 
(b) the electoral college votes on December 14, 3 U.S.C. § 7; and (c) the House of 
Representatives counts votes on January 6, 3 U.S.C. § 15. Absent some form of relief, 
the defendants will appoint electors based on unconstitutional and deeply uncertain 
election results, and the House will count those votes on January 6, tainting the 
election and the future of free elections.
2
Expedited consideration of the motion for leave to file the bill of complaint is 
needed to enable the Court to resolve this original action before the applicable 
statutory deadlines, as well as the constitutional deadline of January 20, 2021, for 
the next presidential term to commence. U.S. CONST. amend. XX, § 1, cl. 1. Texas 
respectfully requests that the Court order Defendant States to respond to the motion 
for leave to file by December 9. Texas waives the waiting period for reply briefs under 
this Court’s Rule 17.5, so that the Court could consider the case on an expedited basis 
at its December 11 conference.
Working in tandem with the merits briefing schedule proposed here, Texas also 
will move for interim relief in the form of a temporary restraining order, preliminary 
injunction, stay, and administrative stay to enjoin Defendant States from certifying 
their presidential electors or having them vote in the electoral college. See S.Ct. Rule 
17.2 (“The form of pleadings and motions prescribed by the Federal Rules of Civil 
Procedure is followed.”); cf. S.Ct. Rule 23 (stays in this Court). Texas also asked in 
their motion for leave to file that the Court summarily resolve this matter at that 
threshold stage. Any relief that the Court grants under those two alternate motions
would inform the expedited briefing needed on the merits.
Enjoining or staying Defendant States’ appointment of electors would be an 
especially appropriate and efficient way to ensure that the eventual appointment and 
vote of such electors reflects a constitutional and accurate tally of lawful votes and 
otherwise complies with the applicable constitutional and statutory requirements in 
time for the House to act on January 6. Accordingly, Texas respectfully requests
3
expedition of this original action on one or more of these related motions. The degree 
of expedition required depends, in part, on whether Congress reschedules the day set 
for presidential electors to vote and the day set for the House to count the votes. See
3 U.S.C. §§ 7, 15; U.S. Const. art. II, §1m cl. 4.
STATEMENT
Like much else in 2020, the 2020 election was compromised by the COVID-19
pandemic. Even without Defendant States’ challenged actions here, the election 
nationwide saw a massive increase in fraud-prone voting by mail. See BUILDING 
CONFIDENCE IN U.S. ELECTIONS: REPORT OF THE COMMISSION ON FEDERAL ELECTION 
REFORM, at 46 (Sept. 2005) (absentee ballots are “the largest source of potential voter 
fraud”). Combined with that increase, the election in Defendant States was also 
compromised by numerous changes to the State legislatures’ duly enacted election 
statutes by non-legislative actors—including both “friendly” suits settled in courts 
and executive fiats via guidance to election officials—in ways that undermined state 
statutory ballot-integrity protections such as signature and witness requirements for 
casting ballots and poll-watcher requirements for counting them. State legislatures 
have plenary authority to set the method for selecting presidential electors, Bush v.
Gore, 531 U.S. 98, 104 (2000) (“Bush II”), and “significant departure from the 
legislative scheme for appointing Presidential electors presents a federal 
constitutional question.” Id. at 113 (Rehnquist, C.J., concurring); accord Bush v. Palm 
Beach Cty. Canvassing Bd., 531 U.S. 70, 76 (2000) (“Bush I”).
Plaintiff State has not had the benefit of formal discovery prior to submitting 
this original action. Nonetheless, Plaintiff State has uncovered substantial evidence 
4
discussed below that raises serious doubts as to the integrity of the election processes 
in Defendant States. Although new information continues to come to light on a daily 
basis, as documented in the accompanying Appendix (“App.”), the voting 
irregularities that resulted from Defendant States’ unconstitutional actions include 
the following:
• Jesse Jacob, a decades-long City of Detroit employee assigned to work in the 
Elections Department for the 2020 election testified (App. 34a-36a) that she 
was “instructed not to look at any of the signatures on the absentee ballots, 
and I was instructed not to compare the signature on the absentee ballot with 
the signature on file” in direct contravention of MCL § 168.765a(6), which 
requires all signatures on ballots be verified.
• 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, testified that USPS employees were backdating ballots 
received after November 3, 2020. Decl. of Ethan J. Pease at ¶¶ 3-13. (App. 
149a-51a). Further, Pease testified how a senior USPA 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” and how the USPSA 
dispatched employees to “find[] … the ballots.” ¶¶ 8-10. One hundred 
thousand ballots “found” after election day far exceeds former Vice President 
Biden margin of 20,565 votes over President Trump.
5
• On August 7, 2020, the League of Women Voters of Pennsylvania and others 
filed a complaint against Secretary Boockvar and other local election officials, 
seeking “a declaratory judgment that Pennsylvania existing signature 
verification procedures for mail-in voting” were unlawful for a number of 
reasons, League of Women Voters of Pennsylvania v. Boockvar, No. 2:20-cv03850-PBT, (E.D. Pa. Aug. 7, 2020), which the Pennsylvania defendants 
quickly settled resulting in guidance (App. 109a-114a)
1 issued on September 
11, 2020, stating in relevant part: “The Pennsylvania Election Code does not 
authorize the county board of elections to set aside returned absentee or mailin ballots based solely on signature analysis by the county board of elections.”
App. 113a.
• Acting under a generally worded clause that “Elections shall be free and 
equal,” PA. CONST. art. I, §5, cl. 1, a 4-3 majority of Pennsylvania’s Supreme 
Court in Pa. Democratic Party v. Boockvar, 238 A.3d 345 (Pa. 2020), extended 
the statutory deadline for mail-in ballots from Election Day to three days after 
Election Day and adopted a presumption that even non-postmarked ballots
were presumptively timely. In addition, a great number of ballots were 
received after the statutory deadline. Because Pennsylvania misled this Court 
1 Although the materials cited here are a complaint, that complaint is verified 
(i.e., declared under penalty of perjury), App. 75a, which is evidence for purposes of a 
motion for summary judgment. Neal v. Kelly, 963 F.2d 453, 457 (D.C. Cir. 1992)
(“allegations in [the] verified complaint should have been considered on the motion 
for summary judgment as if in a new affidavit”).
6
about segregating the late-arriving ballots and instead commingled those 
ballots, it is now impossible to verify Pennsylvania’s claim about the number 
of ballots affected. 
• Contrary to Pennsylvania election law on providing poll-watchers access to the 
opening, counting, and recording of absentee ballots, local election officials in 
Philadelphia and Allegheny Counties decided not to follow 25 PA. STAT. § 
3146.8(b). App. 127a-28a.
• Prior to the election, Secretary Boockvar sent an email to local election officials 
urging them to provide opportunities for various persons—including political 
parties—to contact voters to “cure” defective mail-in ballots. This process 
clearly violated several provisions of the state election code. App. 122a-24a. By 
removing the ballots for examination prior to seven o’clock a.m. on election day, 
Secretary Boockvar created a system whereby local officials could review 
ballots without the proper announcements, observation, and security. This 
entire scheme, which was only followed in Democrat majority counties, was 
blatantly illegal in that it permitted the illegal removal of ballots from their 
locked containers prematurely. App. 122a-24a.
• On December 4, 2020, fifteen members of the Pennsylvania House of 
Representatives issued a report (App. 139a-45a) to Congressman Scott Perry
stating that “[t]he general election of 2020 in Pennsylvania was fraught with 
… documented irregularities and improprieties associated with mail-in 
balloting … [and] that the reliability of the mail-in votes in the Commonwealth 
7
of Pennsylvania is impossible to rely upon.” The report detailed, inter alia, 
that more than 118,426 mail-in votes either had no mail date, were returned 
before they were mailed, or returned one day after the mail date. The Report 
also stated that, based on government reported data, the number of mail-in 
ballots sent by November 2, 2020 (2.7 million) somehow ballooned by 400,000, 
to 3.1 million on November 4, 2020, without explanation.
• On March 6, 2020, in Democratic Party of Georgia v. Raffensperger, No. 1:19-
cv-5028-WMR (N.D. Ga.), Georgia’s Secretary of State entered a Compromise 
Settlement Agreement and Release (App. 19a-24a) with the Democratic Party 
of Georgia (the “Settlement”) to materially change the statutory requirements 
for reviewing signatures on absentee ballot envelopes to confirm the voter’s 
identity by making it far more difficult to challenge defective signatures 
beyond the express mandatory procedures set forth at GA. CODE § 21-2-
386(a)(1)(B), which is particularly disturbing because the legislature allowed 
persons other than the voter to apply for an absentee ballot, GA. CODE § 21-2-
381(a)(1)(C), which means that the legislature likely was relying heavily on the 
signature-verification on ballots under GA. CODE § 21-2-386.
• Numerous poll challengers and an Election Department employee 
whistleblower have testified that the signature verification requirement was 
ignored in Wayne County in a case currently pending in the Michigan Supreme 
Court. App. 25a-51a.
8
• The probability of former Vice President Biden winning the popular vote in the 
four Defendant States—Georgia, Michigan, Pennsylvania, and Wisconsin—
independently given President Trump’s early lead in those States as of 3 a.m.
on November 4, 2020, is less than one in a quadrillion, or 1 in 
1,000,000,000,000,000. For former Vice President Biden to win these four 
States collectively, the odds of that event happening decrease to less than one 
in a quadrillion to the fourth power (i.e., 1 in 1,000,000,000,000,0004). See Decl. 
of Charles J. Cicchetti, Ph.D. (“Cicchetti Decl.”) at ¶¶ 14-21, 30-31 (App. 4a-7a, 
9a).
• The same less than one in a quadrillion statistical improbability of Mr. Biden 
winning the popular vote in the four Defendant States—Georgia, Michigan, 
Pennsylvania, and Wisconsin—independently exists when Mr. Biden’s 
performance in each of those Defendant States is compared to former Secretary 
of State Hilary Clinton’s performance in the 2016 general election and 
President Trump’s performance in the 2016 and 2020 general elections. Again, 
the statistical improbability of Mr. Biden winning the popular vote in these
four States collectively is 1 in 1,000,000,000,000,0005. Id. 10-13, 17-21, 30-31
(App. 3a-7a, 9a).
• Georgia’s unconstitutional abrogation of the express mandatory procedures for 
challenging defective signatures on ballots set forth at GA. CODE § 21-2-
386(a)(1)(B) resulted in far more ballots with unmatching signatures being 
counted in the 2020 election than if the statute had been properly applied. The 
9
2016 rejection rate was more than seventeen times greater than in 2020. See
Cicchetti Decl. at ¶ 24 (App. 7a). As a consequence, applying the rejection rate 
in 2016, which applied the mandatory procedures, to the ballots received in 
2020 would result in a net gain for President Trump of 25,587 votes. This would 
be more than needed to overcome the Biden advantage of 12,670 votes, and 
Trump would win by 12,917 votes. See App. 8a.
• The two Republican members of the Board rescinded their votes to certify the 
vote in Wayne County, and signed affidavits alleging they were bullied and 
misled into approving election results and do not believe the votes should be 
certified until serious irregularities in Detroit votes are resolved. See Cicchetti 
Decl. at ¶ 29 (App. 8a).
• The Wayne County Statement of Votes Report lists 174,384 absentee ballots 
out of 566,694 absentee ballots tabulated (about 30.8%) as counted without a 
registration number for precincts in the City of Detroit. See Cicchetti Decl. at 
¶ 27 (App. 8a). The number of votes not tied to a registered voter by itself 
exceeds Vice President Biden’s margin of margin of 146,007 votes by more than 
28,377 votes. The extra ballots cast most likely resulted from the phenomenon 
of Wayne County election workers running the same ballots through a 
tabulator multiple times, with Republican poll watchers obstructed or denied 
access, and election officials ignoring poll watchers’ challenges, as documented 
by numerous declarations. App. 25a-51a.
As a net result of these challenges, the close election result in Defendant States—on 
10
which the presidential election turns—is indeterminate. Put another way, Defendant 
States’ unconstitutional actions affect outcome-determinative numbers of popular 
votes, that in turn affect outcome-determinative numbers of electoral votes.
To remedy Texas’s claims and remove the cloud over the results of the 2020 
election, expedited review and interim relief are required. December 8, 2020 is a 
statutory safe harbor for States to appoint presidential electors, and by statute the 
electoral college votes on December 14. See 3 U.S.C. §§ 7, 15. In a contemporaneous 
filing, Texas asks this Court to vacate or enjoin—either permanently, preliminarily, 
or administratively—Defendant States from certifying their electors and 
participating in the electoral college vote. As permanent relief, Texas asks this Court 
to remand the allocation of electors to the legislatures of Defendant States pursuant 
to the statutory and constitutional backstop for this scenario: “Whenever any State 
has held an election for the purpose of choosing electors, and has failed to make a 
choice on the day prescribed by law, the electors may be appointed on a subsequent 
day in such a manner as the legislature of such State may direct.” 3 U.S.C. § 2
(emphasis added); U.S. CONST. art. II, § 1, cl. 2.
Significantly, State legislatures retain the authority to appoint electors under 
the federal Electors Clause, even if state laws or constitutions provide otherwise.
McPherson v. Blacker, 146 U.S. 1, 35 (1892); accord Bush I, 531 U.S. at 76-77; Bush 
II, 531 U.S at 104. For its part, Congress could move the December 14 date set for the 
electoral college’s vote, as it has done before when faced with contested elections. Ch. 
37, 19 Stat. 227 (1877). Alternatively, the electoral college could vote on December 14 
11
without Defendant States’ electors, with the presidential election going to the House 
of Representatives under the Twelfth Amendment if no candidate wins the required 
270-vote majority.
What cannot happen, constitutionally, is what Defendant States appear to 
want (namely, the electoral college to proceed based on the unconstitutional election 
in Defendant States):
When the state legislature vests the right to vote for 
President in its people, the right to vote as the legislature 
has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each 
vote and the equal dignity owed to each voter.
Bush II, 531 U.S. at 104. Proceeding under the unconstitutional election is not an 
option.
Pursuant to 28 U.S.C. 1251(a), Plaintiff State has filed a motion for leave to 
file a bill of complaint today. As set forth in the complaint and outlined above, all 
Defendant States ran their 2020 election process in noncompliance with the ballotintegrity requirements of their State legislature’s election statutes, generally using 
the COVID-19 pandemic as a pretext or rationale for doing so. In so doing, Defendant 
States disenfranchised not only their own voters, but also the voters of all other 
States: “the impact of the votes cast in each State is affected by the votes cast for the 
various candidates in other States.” Anderson v. Celebrezze, 460 U.S. 780, 795 (1983).
ARGUMENT
The Constitution vests plenary authority over the appointing of presidential 
electors with State legislatures. McPherson, 146 U.S. at 35; Bush I, 531 U.S. at 76-
77; Bush II, 531 U.S at 104. While State legislatures need not proceed by popular 
12
vote, the Constitution requires protecting the fundamental right to vote when State 
legislatures decide to proceed via elections. Bush II, 531 U.S. at 104. On the issue of 
the constitutionality of an election, moreover, the Judiciary has the final say: “It is 
emphatically the province and duty of the judicial department to say what the law 
is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803); Bush II, 531 U.S. at 104.
For its part, Congress has the ability to set the time for the electoral college to vote. 
U.S. CONST. art. II, § 1, cl. 3. To proceed constitutionally with the 2020 election, all 
three actors potentially have a role, given the complications posed by Defendant 
States’ unconstitutional actions.
With this year’s election on November 3, and the electoral college’s vote set by 
statute for December 14, 3 U.S.C. § 7, Congress has not allowed much time to 
investigate irregularities like those in Defendant States before the electoral college 
is statutorily set to act. But the time constraints are not constitutional in nature—
the Constitution’s only time-related provision is that the President’s term ends on 
January 20, U.S. CONST. amend. XX, § 1, cl. 1—and Congress has both the obvious 
authority and even a history of moving the date of the electoral college’s vote when 
election irregularities require it.
Expedited consideration of this matter is warranted by the seriousness of the 
issues raised here, not only for the results of the 2020 presidential election but also 
for the implications for our constitutional democracy going forward. If this Court does 
not halt the Defendant States’ participation in the electoral college’s vote on 
December 14, a grave cloud will hang over not only the presidency but also the 
13
Republic. 
With ordinary briefing, Defendant States would not need to respond for 60 
days, S.Ct. Rule 17.5, which is after the next presidential term commences on 
January 20, 2021. Accordingly, this Court should adopt an expedited briefing 
schedule on the motion for leave to file the bill of complaint, as well as the 
contemporaneously filed motion for interim relief, including an administrative stay 
or temporary restraining order pending further order of the Court. If this Court 
declines to resolve this original action summarily, the Court should adopt an 
expedited briefing schedule for plenary consideration, allowing the Court to resolve 
this matter before the relevant deadline passes. The contours of that schedule depend 
on whether the Court grants interim relief. Texas respectfully proposes two alternate 
schedules.
If the Court has not yet granted administrative relief, Texas proposes that the 
Court order Defendant States to respond to the motion for leave to file a bill of 
complaint and motion for interim relief by December 9. See S.Ct. Rule 17.2 (adopting 
Federal Rules of Civil Procedure); FED. R. CIV. P. 65; cf. S.Ct. Rule 23 (stays). Texas 
waives the waiting period for reply briefs under this Court’s Rule 17.5 and would 
reply by December 10, which would allow the Court to consider this case on an 
expedited basis at its December 11 Conference.
With respect to the merits if the Court neither grants the requested interim 
relief nor summarily resolves this matter in response to the motion for leave to file 
the bill of complaint, thus requiring briefing of the merits, Texas respectfully proposes
14
the following schedule for briefing and argument:
December 8, 2020 Plaintiffs’ opening brief
December 8, 2020 Amicus briefs in support of plaintiffs or of neither party
December 9, 2020 Defendants’ response brief(s)
December 9, 2020 Amicus briefs in support of defendants
December 10, 2020 Plaintiffs’ reply brief(s) to each response brief
December 11, 2020 Oral argument, if needed
If the Court grants an administrative stay or other interim relief, but does not 
summarily resolve this matter in response to the motion for leave to file the bill of 
complaint, Texas respectfully proposes the following schedule for briefing and 
argument on the merits:
December 11, 2020 Plaintiffs’ opening brief
December 11, 2020 Amicus briefs in support of plaintiffs or of neither party
December 17, 2020 Defendants’ response brief(s)
December 17, 2020 Amicus briefs in support of defendants
December 22, 2020 Plaintiffs’ reply brief(s) to each response brief
December 2020 Oral argument, if needed
In the event that Congress moves the date for the electoral college and the House to 
vote or count votes, then the parties could propose an alternate schedule. If any 
motions to intervene are granted by the applicable deadline, intervenors would file 
by the applicable deadline as plaintiffs-intervenors or defendants-intervenors, with 
any still-pending intervenor filings considered as amicus briefs unless such 
15
prospective intervenors file or seek leave to file an amicus brief in lieu of their stillpending intervenor filings.
CONCLUSION
Texas respectfully requests that the Court expedite consideration of its motion 
for leave to file a bill of complaint based on the proposed schedule and, if the Court 
neither stays nor summarily resolves the matter and thus sets the case for plenary 
consideration, that the Court expedite briefing and oral argument based on the 
proposed schedule.
Dated: December 7, 2020 Respectfully submitted,
_____________________________________
Ken Paxton*
Attorney General of Texas
Brent Webster
First Assistant Attorney General of Texas
Lawrence Joseph
Special Counsel to the Attorney General of 
Texas
Office of the Attorney General
P.O. Box 12548 (MC 059)
Austin, TX 78711-2548
kenneth.paxton@oag.texas.gov
(512) 936-1414
* Counsel of Record
Counsel for Plaintiffs
/s/ Ken Paxton
CERTIFICATE AS TO FORM
Pursuant to Sup. Ct. Rules 22 and 33, I certify that the foregoing motion are 
proportionately spaced, has a typeface of Century Schoolbook, 12 points, and contains
15 pages (and 3,550 words), excluding this Certificate as to Form, the Table of 
Contents, and the Certificate of Service. 
Dated: December 7, 2020 Respectfully submitted,
Ken Paxton
Counsel of Record
Attorney General of Texas
Office of the Attorney General
P.O. Box 12548 (MC 059)
Austin, TX 78711-2548
Kenneth.paxton@oag.texas.gov
(512) 936-1414
Counsel for Plaintiffs
/s/ Ken Paxton
CERTIFICATE OF SERVICE
The undersigned certifies that, on this 7th day of December 2020, in addition 
to filing the foregoing document via the Court’s electronic filing system, one true and 
correct copy of the foregoing document was served by Federal Express, with a PDF 
courtesy copy served via electronic mail on the following counsel and parties:
[Brian Kemp
Office of the Governor
206 Washington Street
Suite 203, State Capitol
Atlanta, GA 30334
Tel: (404) 656-1776
Email: governorsoffice@michigan.gov
Christopher M. Carr
Office of the Attorney General
40 Capitol Square, SW
Atlanta, GA 30334
Tel: (404) 458-3600
Email: ccarr@law.ga.gov
Gretchen Whitmer
Office of the Governor
P.O. Box 30013
Lansing, MI 48909
Tel: 517-373-3400
Email: governorsoffice@michigan.gov
Dana Nessel
G. Mennen Williams Building
525 W. Ottawa Street
P.O. Box 30212
Lansing, MI 48909
Tel: 517-373-1110
Email: dnessel@michigan.gov
Anthony S. Evers
Office of the Governor
115 East, State Capitol
Madison WI 53702
Tel: (414) 227-4344
Email: EversInfo@wisconsin.gov
Joshua L. Kaul
Wisconsin Department of Justice
17 West Main Street, P.O. Box 7857
Madison, WI 53707-7857
Tel: (608) 287-4202
Email: kauljl@doj.state.wi.us
Tom Wolf
Office of the Governor
508 Main Capitol Building
Harrisburg, PA 17120
Tel: 717-787-2500
Email: govcorrespcrm@pa.gov
Josh Shapiro
Office of Attorney General 
Strawberry Square
Harrisburg, PA 17120
Tel.: 717.787.3391
Email: jshapiro@attorneygeneral.gov
Executed December 7, 2020, at Washington, DC,
__________________________
Lawrence J. Joseph
/s/ Lawrence J. Joseph
No. ______, Original
In the Supreme Court of the United States 
STATE OF TEXAS,
Plaintiff,
v.
COMMONWEALTH OF PENNSYLVANIA, STATE OF 
GEORGIA, STATE OF MICHIGAN, AND STATE OF 
WISCONSIN,
Defendants.
MOTION FOR PRELIMINARY INJUNCTION 
AND TEMPORARY RESTRAINING ORDER OR, 
ALTERNATIVELY, FOR STAY AND 
ADMINISTRATIVE STAY
Ken Paxton*
Attorney General of Texas
Brent Webster
First Assistant Attorney 
General of Texas
Lawrence Joseph
Special Counsel to the 
Attorney General of Texas
Office of the Attorney General
P.O. Box 12548 (MC 059)
Austin, TX 78711-2548
kenneth.paxton@oag.texas.gov
(512) 936-1414
* Counsel of Record
i
TABLE OF CONTENTS
Pages
Table of Authorities...................................................iii
Motion for Preliminary Injunction and 
Temporary Restraining Order or, 
Alternatively, for Stay and Administrative 
Stay....................................................................... 1
Statement of the Case................................................ 2
Constitutional Background ................................. 4
Defendant States’ Violations of Electors 
Clause ............................................................ 5
Factual Background............................................. 5
Standard of Review .................................................... 6
Argument.................................................................... 7
I. This Court is likely to exercise its discretion 
to hear this case. .................................................. 7
II. The Plaintiff State is likely to prevail................. 8
A. This Court has jurisdiction over Plaintiff 
State's claims................................................. 9
1. The claims fall within this Court’s 
constitutional and statutory subjectmatter jurisdiction. ................................. 9
2. The claims arise under the 
Constitution........................................... 10
3. The claims raise a “case or 
controversy” between the States. ......... 12
4. Plaintiff State has prudential 
standing................................................. 19
5. This action is not moot and will not 
become moot. ......................................... 21
6. This matter is ripe for review............... 21
ii
7. This action does not raise a nonjusticiable political question................. 23
8. No adequate alternate remedy or 
forum exists........................................... 23
B. The Plaintiff State is likely to prevail on 
the merits..................................................... 26
1. Defendant States violated the 
Electors Clause by modifying their 
legislatures’ election laws through 
non-legislative action............................ 26
2. State and local administrator’s 
systemic failure to follow State 
election qualifies as an unlawful 
amendment of State law....................... 30
III. The other Winter-Hollingsworth factors 
warrant interim relief........................................ 31
A. Plaintiff State will suffer irreparable 
harm if the Defendant States’ 
unconstitutional electors vote in the 
electoral college. .......................................... 32
B. The Defendant States would not suffer 
cognizable irreparable harm, and the 
balance of equities tips to the Plaintiff 
State............................................................. 32
C. The public interest favors interim relief. ... 33
IV. Alternatively, this case warrants summary 
disposition. ......................................................... 34
Conclusion ................................................................ 35
iii
TABLE OF AUTHORITIES
Pages
Cases
Anderson v. Celebrezze, 460 U.S. 780 (1983)........... 13
Anderson v. United States, 417 U.S. 211 (1974) ..... 14
Arizona Sect’y of State’s Office v. Feldman, 137 
S.Ct. 446 (2016)..................................................... 6
Ass’n of Data Processing Serv. Org., Inc. v. Camp, 
397 U.S. 150 (1970)............................................. 19
Baer v. Meyer, 728 F.2d 471 (10th Cir. 1984).......... 31
Baker v. Carr, 369 U.S. 186 (1962).............. 14, 23, 28
Barr v. Chatman, 397 F.2d 515 (7th Cir. 1968)...... 31
Bell v. Hood, 327 U.S. 678 (1946) ............................ 12
Bognet v. Sec’y Pa., No. 20-3214, 2020 U.S. App. 
LEXIS 35639 (3d Cir. Nov. 13, 2020)................. 20
Brushaber v. Union Pac. R. Co., 
240 U.S. 1 (1916)................................................. 31
Burdick v. Takushi, 504 U.S. 428 (1992) ................ 28
California v. Texas, 459 U.S. 1067 (1982)................. 6
Caplin & Drysdale v. United States, 
491 U.S. 617 (1989)............................................. 14
City of Boerne v. Flores, 521 U.S. 507 (1997) .......... 17
City of Chicago v. Int’l Coll. of Surgeons, 
522 U.S. 156 (1997)............................................. 11
Coleman v. Miller, 307 U.S. 433 (1939)................... 16
Cook v. Gralike, 531 U.S. 510 (2001)............ 11-12, 31
Democratic Nat'l Comm. v. Wisconsin State 
Legis., No. 20A66, 2020 U.S. LEXIS 5187 
(Oct. 26, 2020) ....................................................... 6
Dep’t of Homeland Sec. v. New York, 140 S. Ct. 
599 (2020)............................................................ 29
iv
Dunn v. Blumstein, 405 U.S. 330 (1972) ................. 14
FEC v. Akins, 524 U.S. 11 (1998) ............................ 18
FEC v. Wisconsin Right to Life, Inc., 
551 U.S. 449 (2007)............................................. 21
Foman v. Davis, 371 U.S. 178 (1962) ........................ 9
Foster v. Chatman, 136 S.Ct. 1737 (2016)............... 10
Fox Film Corp. v. Muller, 296 U.S. 207 (1935) ....... 11
Frank v. Walker, 135 S.Ct. 7 (2014) .......................... 6
Free Enter. Fund v. Pub. Co. Accounting 
Oversight Bd., 561 U.S. 477 (2010) .................... 28
Gasser Chair Co. v. Infanti Chair Mfg. Corp., 60 
F.3d 770 (Fed. Cir. 1995).................................... 22
Grayned v. City of Rockford,
408 U.S. 104 (1972)............................................. 28
Harris v. Conradi, 675 F.2d 1212 
(11th Cir. 1982) ................................................... 31
Heckler v. Chaney, 470 U.S. 821 (1985)................... 30
Hollingsworth v. Perry, 558 U.S. 183 (2010).... 7-8, 31
Hunter v. Hamilton Cty. Bd. of Elections, 635 
F.3d 219 (6th Cir. 2011)...................................... 34
Husted v. Ohio State Conf. of the NAACP, 135 
S.Ct. 42 (2014)....................................................... 6
Jacobson v. Massachusetts, 197 U.S. 11 (1905) ...... 30
Kentucky v. Indiana, 281 U.S. 163 (1930)............... 15
Kowalski v. Tesmer, 543 U.S. 125 (2004) ................ 19
Lance v. Coffman, 549 U.S. 437 (2007) ................... 15
League of Women Voters of the United States v. 
Newby, 838 F.3d 1 (D.C. Cir. 2016).................... 33
Leser v. Garnett, 258 U.S. 130 (1922)...................... 25
Lujan v. Defenders of Wildlife, 504 U.S. 555 
(1992)................................................................... 13
v
Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871 (1990) . 22
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) 34
Maryland v. Louisiana, 451 U.S. 725 (1981) .......... 13
Massachusetts v. Environmental Protection 
Agency, 549 U.S. 497 (2007) ......................... 15, 20
McPherson v. Blacker, 146 U.S. 1 (1892)..... 18, 25, 27
Merrell Dow Pharm., Inc. v. Thompson, 478 U.S. 
804 (1986)............................................................ 10
Morton v. Ruiz, 415 U.S. 199 (1974)........................ 30
Mostyn v. Fabrigas, 98 Eng. Rep. 1021 (K.B. 
1774) ...................................................................... 8
Nebraska v. Colorado, 136 S.Ct. 1034 (2016)............ 7
New Jersey v. New York, 345 U.S. 369 (1953)......... 15
New Mexico v. Colorado, 137 S.Ct. 2319 (2017)........ 7
Norman v. Reed, 502 U.S. 279 (1992)...................... 21
North Carolina v. Covington, 
138 S.Ct. 974 (2018).............................................. 6
North Carolina v. League of Women Voters, 135 
S.Ct. 6 (2014)......................................................... 6
Oregon v. Mitchell, 400 U.S. 112 (1970).................... 8
Petrella v. MGM, 572 U.S. 663 (2014)..................... 22
Profitness Physical Therapy Ctr. v. Pro-Fit 
Orthopedic & Sports Physical Therapy P.C., 
314 F.3d 62 (2d Cir. 2002) .................................. 22
Republican Nat’l Comm. v. Democratic Nat’l 
Comm., 140 S.Ct. 1205 (2020) .............................. 6
Republican Party of Pa. v. Boockvar, No. 20-542, 
2020 U.S. LEXIS 5188 (Oct. 28, 2020)
Republican Party v. Boockvar, No. 20A54, 2020 
U.S. LEXIS 5181 (Oct. 19, 2020).......................... 7
Reynolds v. Sims, 377 U.S. 533 (1964) ................ 2, 13
vi
Roman Catholic Diocese of Brooklyn, New York v. 
Cuomo, 592 U.S. ___ (Nov. 25, 2020) ................. 26
Rosario v. Rockefeller, 410 U.S. 752 (1973)............. 28
Service v. Dulles, 354 U.S. 363 (1957) ..................... 30
Steel Co. v. Citizens for a Better Env’t., 523 U.S. 
83 (1998)................................................................ 9
Texas v. United States, 523 U.S. 296 (1998)
United States Term Limits v. Thornton, 514 U.S. 
779, 805 (1995).................................................... 21
United States v. Louisiana, 351 U.S. 978 (1956) ...... 6
United States v. Nevada, 412 U.S. 534 (1973) ........ 24
Washington v. Reno, 35 F.3d 1093 (6th Cir. 1994) . 33
Wesberry v. Sanders, 376 U.S. 1 (1964)... 2, 14, 20, 33
What-A-Burger of Va., Inc. v. Whataburger, Inc., 
357 F.3d 441 (4th Cir. 2004)............................... 22
Winter v. Natural Resources Def. Council, Inc., 
555 U.S. 7 (2008)................................................. 22
Wisconsin State Legis., No. 20A66, 2020 U.S. 
LEXIS 5187 (Oct. 26, 2020) ............................ 8, 28
Yick Wo v. Hopkins, 118 U.S. 356 (1886) ................ 14
Statutes
U.S. CONST. art. I, § 4.............................................. 3-4
U.S. CONST. art. II, § 1, cl. 2..............................passim
U.S. CONST. art. III............................. 10-13, 16, 19-20
U.S. CONST. art. III, § 2.............................................. 9
U.S. CONST. art. V, cl. 3............................................ 14
U.S. CONST. amend. XII ........................................... 24
U.S. CONST. amend. XX, § 1..................................... 10
3 U.S.C. § 2 ......................................5, 9, 19, 26, 32, 35
3 U.S.C. § 5 ........................................................... 9, 24
vii
3 U.S.C. § 7 ................................................................. 9
3 U.S.C. § 15 ......................................................... 9, 19
28 U.S.C. § 1251(a)................................................. 7, 9
28 U.S.C. § 1331 ....................................................... 10
52 U.S.C. § 20501(b)(1)-(2) ......................................... 2
52 U.S.C. § 20501(b)(3)-(4) ......................................... 2
Rules, Regulations and Orders
S.Ct. Rule 17.2........................................................ 2, 6
S.Ct. Rule 17.5.......................................................... 34
S.Ct. Rule 21............................................................... 1
S.Ct. Rule 23............................................................... 1
Fed. R. Civ. P. 65........................................................ 1
FED. R. CIV. P. 65(a)(2) ............................................. 34
Other Authorities
BUILDING CONFIDENCE IN U.S. ELECTIONS: REPORT 
OF THE COMMISSION ON FEDERAL ELECTION 
REFORM (Sept. 2005)............................................. 5
FEDERALIST NO. 57 (James Madisn) ........................ 27
FEDERALIST NO. 68 (Alexander Hamilton) ................ 4
Robert G. Natelson, The Original Scope of the 
Congressional Power to Regulate Elections, 13 
U. PA. J. CONST. L. 1 (2010) ................................ 27
J. Story, 1 COMMENTARIES ON THE CONSTITUTION 
OF THE UNITED STATES § 627 (3d ed. 1858) .. 12, 31
No. ______, Original
In the Supreme Court of the United States 
STATE OF TEXAS,
Plaintiff,
v.
COMMONWEALTH OF PENNSYLVANIA, STATE OF 
GEORGIA, STATE OF MICHIGAN, AND STATE OF 
WISCONSIN,
Defendants.
MOTION FOR PRELIMINARY 
INJUNCTION AND TEMPORARY 
RESTRAINING ORDER OR, 
ALTERNATIVELY, FOR STAY AND 
ADMINISTRATIVE STAY
Pursuant to S.Ct. Rules 21, 23, and 17.2 and pursuant to FED. R. CIV. P. 65, the State of Texas
(“Plaintiff State”) respectfully moves this Court to 
enter an administrative stay and temporary 
restraining order (“TRO”) to enjoin the States of 
Georgia, Michigan, and Wisconsin and the 
Commonwealth of Pennsylvania (collectively, the 
“Defendant States”) and all of their agents, officers, 
presidential electors, and others acting in concert
from taking action to certify presidential electors or to 
have such electors take any official action—including 
without limitation participating in the electoral 
college or voting for a presidential candidate—until 
further order of this Court, and to preliminarily enjoin 
2
and to stay such actions pending the final resolution 
of this action on the merits.
STATEMENT OF THE CASE
Lawful elections are the heart of our freedoms. 
“No right is more precious in a free country than that 
of having a voice in the election of those who make the 
laws under which, as good citizens, we must live. 
Other rights, even the most basic, are illusory if the 
right to vote is undermined.” Wesberry v. Sanders, 376 
U.S. 1, 10 (1964). Trust in the integrity of that process 
is the glue that binds our citizenry and the States in 
this Union. 
Elections face the competing goals of maximizing 
and counting lawful votes but minimizing and 
excluding unlawful ones. Reynolds v. Sims, 377 U.S. 
533, 554-55 (1964); Bush v. Gore, 531 U.S. 98, 103 
(2000) (“the votes eligible for inclusion in the 
certification are the votes meeting the properly 
established legal requirements”) (“Bush II”); compare
52 U.S.C. § 20501(b)(1)-(2) (2018) with id.
§ 20501(b)(3)-(4). Moreover, “the right of suffrage can 
be denied by a debasement or dilution of the weight of 
a citizen’s vote just as effectively as by wholly 
prohibiting the free exercise of the franchise.”
Reynolds, 377 U.S. at 555. Reviewing election results 
requires not only counting lawful votes but also 
eliminating unlawful ones.
It is an understatement to say that 2020 was not 
a good year. In addition to a divided and partisan 
national mood, the country faced the COVID-19
pandemic. Certain officials in the Defendant States
presented the pandemic as the justification for
ignoring state laws regarding absentee and mail-in 
3
voting. The Defendant States flooded their citizenry 
with tens of millions of ballot applications and ballots 
in derogation of statutory controls as to how they are 
lawfully received, evaluated, and counted. Whether 
well intentioned or not, these unconstitutional acts 
had the same uniform effect—they made the 2020 
election less secure in the Defendant States. Those 
changes are inconsistent with relevant state laws and 
were made by non-legislative entities, without any 
consent by the state legislatures. The acts of these 
officials thus directly violated the Constitution. U.S. 
CONST. art. I, § 4; id. art. II, § 1, cl. 2.
This case presents a question of law: Did the 
Defendant States violate the Electors Clause by 
taking non-legislative actions to change the election 
rules that would govern the appointment of 
presidential electors? These non-legislative changes 
to the Defendant States’ election laws facilitated the 
casting and counting of ballots in violation of state 
law, which, in turn, violated the Electors Clause of 
Article II, Section 1, Clause 2 of the U.S. Constitution. 
By these unlawful acts, the Defendant States have not 
only tainted the integrity of their own citizens’ vote, 
but their actions have also debased the votes of 
citizens in Plaintiff State and other States that 
remained loyal to the Constitution.
Elections for federal office must comport with 
federal constitutional standards, see Bush II, 531 U.S. 
at 103-05, and executive branch government officials 
cannot subvert these constitutional requirements, no 
matter their stated intent. For presidential elections, 
each State must appoint its Electors to the electoral 
college in a manner that complies with the 
4
Constitution, specifically the Electors Clause 
requirement that only state legislatures may set the 
rules governing the appointment of electors and the 
elections upon which such appointment is based.1
Constitutional Background
The Electors Clause requires that each State 
“shall appoint” its Presidential Electors “in such 
Manner as the Legislature thereof may direct.” U.S.
CONST. art. II, § 1, cl. 2 (emphasis added); cf. id. art. I, 
§ 4 (similar for time, place, and manner of federal 
legislative elections). “[T]he state legislature’s power 
to select the manner for appointing electors is 
plenary,” Bush II, 531 U.S. at 104 (emphasis added), 
and sufficiently federal for this Court’s review. Bush 
v. Palm Beach Cty. Canvassing Bd., 531 U.S. 70, 76 
(2000) (“Bush I”). This textual feature of our 
Constitution was adopted to ensure the integrity of 
the presidential selection process: “Nothing was more 
to be desired than that every practicable obstacle 
should be opposed to cabal, intrigue, and corruption.”
FEDERALIST NO. 68 (Alexander Hamilton). When a 
State conducts a popular election to appoint electors, 
the State must comply with all constitutional 
requirements. Bush II, 531 U.S. at 104. When a State 
fails to conduct a valid election—for any reason—'the 
electors may be appointed on a subsequent day in such 
1 Subject to override by Congress, State legislatures have the 
exclusive power to regulate the time, place, and manner for 
electing Members of Congress, see U.S. CONST. art. I, § 4, which 
is distinct from legislatures’ exclusive and plenary authority on 
the appointment of presidential electors. When non-legislative 
actors purport to set State election law for presidential elections, 
they violate both the Elections Clause and the Electors Clause.
5
a manner as the legislature of such State may direct.”
3 U.S.C. § 2 (emphasis added).
Defendant States’ Violations of Electors Clause
As set forth in the Complaint, executive and 
judicial officials made significant changes to the 
legislatively defined election laws in the Defendant 
States. See Compl. at ¶¶ 29-134. Taken together, 
these non-legislative changes did away with statutory 
ballot-security measures for absentee and mail-in 
ballots such as signature verification, witness 
requirements, and statutorily authorized secure 
ballot drop-off locations.
Citing the COVID-19 pandemic, Defendant States 
gutted the safeguards for absentee ballots through 
non-legislative actions, despite knowledge that 
absentee ballots are “the largest source of potential 
voter fraud,” BUILDING CONFIDENCE IN U.S.
ELECTIONS: REPORT OF THE COMMISSION ON FEDERAL 
ELECTION REFORM, at 46 (Sept. 2005) (hereinafter, 
“CARTER-BAKER”), which is magnified when absentee 
balloting is shorn of ballot-integrity measures such as 
signature verification, witness requirements, or 
outer-envelope protections, or when absentee ballots 
are processed and tabulated without bipartisan 
observation by poll watchers.
Factual Background
Without Defendant States’ combined 72 electoral 
votes, President Trump presumably has 232 electoral 
votes, and former Vice President Biden presumably 
has 234. Thus, Defendant States’ electors will 
determine the outcome of the election. Alternatively, 
if Defendant States are unable to certify 37 or more 
electors, neither candidate will have a majority in the 
6
Electoral College, in which case the election would 
devolve to the U.S. House of Representatives under 
the Twelfth Amendment to the U.S. Constitution.
STANDARD OF REVIEW
Original actions follow the motions practice of the 
Federal Rules of Civil Procedure. S.Ct. 17.2. Plaintiffs 
can obtain preliminary injunctions in original actions. 
See California v. Texas, 459 U.S. 1067 (1982) 
(“[m]otion of plaintiff for issuance of a preliminary 
injunction granted”); United States v. Louisiana, 351 
U.S. 978 (1956) (enjoining named state officers “and 
others acting with them … from prosecuting any other 
case or cases involving the controversy before this 
Court until further order of the Court”). Similarly, a 
moving party can seek a stay pending appeal under 
this Court’s Rule 23.2
Plaintiffs who seek interim relief under Federal 
Rule 65 must establish that they likely will succeed on 
the merits and likely will suffer irreparable harm 
without interim relief, that the balance of equities 
between their harm in the absence of interim relief 
and the defendants’ harm from interim relief favors 
the movants, and that the public interest favors 
interim relief. Winter v. Natural Resources Def. 
Council, Inc., 555 U.S. 7, 20 (2008). To obtain a stay 
pending appeal under this Court’s Rule 23, the 
applicant must meet a similar test:
2 See, e.g., Frank v. Walker, 135 S.Ct. 7 (2014); Husted v. Ohio 
State Conf. of the NAACP, 135 S.Ct. 42 (2014); North Carolina v. 
League of Women Voters, 135 S.Ct. 6 (2014); Arizona Sect’y of 
State’s Office v. Feldman, 137 S.Ct. 446 (2016); North Carolina 
v. Covington, 138 S.Ct. 974 (2018); Republican Nat’l Comm. v. 
Democratic Nat’l Comm., 140 S.Ct. 1205 (2020).
7
(1) a reasonable probability that four Justices 
will consider the issue sufficiently meritorious 
to grant certiorari; (2) a fair prospect that a 
majority of the Court will vote to reverse the 
judgment below; and (3) a likelihood that 
irreparable harm will result from the denial of 
a stay. In close cases the Circuit Justice or the 
Court will balance the equities and weigh the 
relative harms to the applicant and to the 
respondent.
Hollingsworth v. Perry, 558 U.S. 183, 190 (2010).
ARGUMENT
I. THIS COURT IS LIKELY TO EXERCISE ITS 
DISCRETION TO HEAR THIS CASE.
Although Plaintiff State disputes that this Court 
has discretion to decide not to hear this case instituted 
by a sovereign State, see 28 U.S.C. § 1251(a) (this 
Court’s jurisdiction is exclusive for actions between 
States); Nebraska v. Colorado, 136 S.Ct. 1034, 1035 
(2016) (Thomas, J., dissenting, joined by Alito, J.); 
accord New Mexico v. Colorado, 137 S.Ct. 2319 (2017) 
(Thomas, J., dissenting), this Court is nonetheless 
likely to exercise its discretion to hear this case for two 
reasons, which is analogous to the first Hollingsworth
factor for a stay.
First, in the analogous case of Republican Party v. 
Boockvar, No. 20A54, 2020 U.S. LEXIS 5181 (Oct. 19, 
2020), four justices voted to stay a decision by the 
Pennsylvania Supreme Court that worked an example 
of the type of non-legislative revision to State election 
law that the Plaintiff State challenges here. In 
addition, since then, a new Associate Justice joined 
the Court, and the Chief Justice indicated a rationale 
8
for voting against a stay in Democratic Nat'l Comm. 
v. Wisconsin State Legis., No. 20A66, 2020 U.S. LEXIS 
5187, at *1 (Oct. 26, 2020) (Roberts, C.J., concurring 
in denial of application to vacate stay) that either does 
not apply to original actions or that was wrong for the 
reasons set forth in Section II.A.2, supra (nonlegislative amendment of State election statutes poses
a question that arises under the federal Constitution, 
see Bush II, 531 U.S. at 113 (Rehnquist, C.J., 
concurring).
Second, this Court has repeatedly acknowledged 
the “uniquely important national interest” in elections 
for president and the rules for them. Bush II, 531 U.S. 
at 112 (interior quotations omitted); see also Oregon v. 
Mitchell, 400 U.S. 112 (1970) (original jurisdiction in 
voting-rights cases). Few cases on this Court’s docket 
will be as important to our future as this case.
Third, no other remedy or forum exists for a State 
to challenge multiple States’ maladministration of a 
presidential election, see Section II.A.8, infra, and 
some court must have jurisdiction for these
fundamental issues about the viability of our 
democracy: “if there is no other mode of trial, that 
alone will give the King’s courts a jurisdiction.”
Mostyn v. Fabrigas, 98 Eng. Rep. 1021, 1028 (K.B. 
1774) (Lord Mansfield).
II. THE PLAINTIFF STATE IS LIKELY TO 
PREVAIL.
Under the Winter-Hollingsworth test, the 
plaintiff’s likelihood of prevailing is the primary factor 
to assess the need for interim relief. Here, the Plaintiff 
State will prevail because this Court has jurisdiction
and the Plaintiff State’s merit case is likely to prevail.
9
A. This Court has jurisdiction over 
Plaintiff State’s claims
In order to grant leave to file, this Court first must 
assure itself of its jurisdiction, Steel Co. v. Citizens for 
a Better Env’t., 523 U.S. 83, 95 (1998); cf. Foman v. 
Davis, 371 U.S. 178, 182 (1962) (courts deny leave to 
file amended pleadings that would be futile). That 
standard is met here. The Plaintiff State’s 
fundamental rights and interests are at stake. This 
Court is the only venue that can protect the Plaintiff 
State’s Electoral College votes from being cancelled by 
the unlawful and constitutionally tainted votes cast 
by Electors appointed by the Defendant States. 
1. The claims fall within this Court’s 
constitutional and statutory subjectmatter jurisdiction.
The federal judicial power extends to 
“Controversies between two or more States.” U.S.
CONST. art. III, § 2, and Congress has placed the 
jurisdiction for such suits exclusively with the 
Supreme Court: “The Supreme Court shall have 
original and exclusive jurisdiction of all controversies 
between two or more States.” 28 U.S.C. § 1251(a) 
(emphasis added). This Court not only is a permissible 
court for hearing this action; it is the only court that 
can hear this action quickly enough to render relief 
sufficient to avoid constitutionally tainted votes in the 
Electoral College and to place the appointment and 
certification of the Defendant States’ presidential 
electors before their legislatures pursuant to 3 U.S.C. 
§§ 2, 5, and 7 in time for a vote in the House of 
Representatives on January 6, 2021. See 3 U.S.C. § 15. 
With that relief in place, the House can resolve the 
10
election on January 6, 2021, in time for the President 
to be selected by the constitutionally set date of 
January 20. U.S. CONST. amend. XX, § 1.
2. The claims arise under the 
Constitution.
When States violate their own election laws, they 
may argue that these violations are insufficiently 
federal to allow review in this Court. Cf. Foster v. 
Chatman, 136 S.Ct. 1737, 1745-46 (2016) (this Court 
lacks jurisdiction to review state-court decisions that 
“rest[] on an adequate and independent state law 
ground”). That attempted evasion would fail for two 
reasons. 
First, in the election context, a state-court remedy 
or a state executive’s administrative action purporting 
to alter state election statutes implicates the Electors 
Clause. See Bush II, 531 U.S. at 105. Even a plausible 
federal-law defense to state action arises under 
federal law within the meaning of Article III. Mesa v. 
California, 489 U.S. 121, 136 (1989) (holding that “it 
is the raising of a federal question in the officer’s 
removal petition that constitutes the federal law 
under which the action against the federal officer 
arises for Art. III purposes”). Constitutional arisingunder jurisdiction exceeds statutory federal-question 
jurisdiction of federal district courts,3 and—indeed—
we did not even have federal-question jurisdiction 
until 1875. Merrell Dow Pharm., 478 U.S. at 807. The 
3 The statute for federal-officer removal at issue in Mesa
omits the well-pleaded complaint rule, id., which is a statutory
restriction on federal-question jurisdiction under 28 U.S.C. § 
1331. See Merrell Dow Pharm., Inc. v. Thompson, 478 U.S. 804, 
808 (1986).
11
Plaintiff State’s Electoral Clause claims arise under 
the Constitution and so are federal, even if the only 
claim is that the Defendant States violated their own 
state election statutes. Moreover, as is explained 
below, the Defendant States’ actions injure the 
interests of Plaintiff State in the appointment and 
certification of presidential electors to the Electoral 
College.
Given this federal-law basis against these state 
actions, the state actions are not “independent” of the 
federal constitutional requirements that provide this 
Court jurisdiction. Fox Film Corp. v. Muller, 296 U.S. 
207, 210-11 (1935); cf. City of Chicago v. Int’l Coll. of 
Surgeons, 522 U.S. 156, 164 (1997) (noting that “even 
though state law creates a party’s causes of action, its 
case might still ‘arise under’ the laws of the United 
States if a well-pleaded complaint established that its 
right to relief under state law requires resolution of a 
substantial question of federal law” and collecting 
cases) (internal quotations and alterations omitted). 
Plaintiff State’s claims therefore fall within this 
Court’s arising-under jurisdiction.
Second, state election law is not purely a matter 
of state law because it applies “not only to elections to 
state offices, but also to the election of Presidential 
electors,” meaning that state law operates, in part, “by 
virtue of a direct grant of authority made under Art. 
II, § 1, cl. 2, of the United States Constitution.” Bush 
I, 531 U.S. at 76. Logically, “any state authority to 
regulate election to [federal] offices could not precede 
their very creation by the Constitution,” meaning that 
any “such power had to be delegated to, rather than 
reserved by, the States.” Cook v. Gralike, 531 U.S. 
12
510, 522 (2001) (internal quotations omitted). “It is no 
original prerogative of State power to appoint a 
representative, a senator, or President for the Union.”
J. Story, 1 COMMENTARIES ON THE CONSTITUTION OF 
THE UNITED STATES § 627 (3d ed. 1858). For these 
reasons, any “significant departure from the 
legislative scheme for appointing Presidential electors 
presents a federal constitutional question.” Bush II, 
531 U.S. at 113 (Rehnquist, C.J., concurring).
Under these circumstances, this Court has the 
power both to review and to remedy a violation of the
Constitution. Significantly, parties do not need 
winning hands to establish jurisdiction. Instead, 
jurisdiction exists when “the right of the petitioners to 
recover under their complaint will be sustained if the 
Constitution and laws of the United States are given 
one construction,” even if the right “will be defeated if 
they are given another.” Bell v. Hood, 327 U.S. 678, 
685 (1946). At least as to jurisdiction, a plaintiff need 
survive only the low threshold that “the alleged claim 
under the Constitution or federal statutes [not] … be 
immaterial and made solely for the purpose of 
obtaining jurisdiction or … wholly insubstantial and 
frivolous.” Id. at 682. The Bill of Complaint meets that 
test.
3. The claims raise a “case or 
controversy” between the States.
Like any other action, an original action must 
meet the Article III criteria for a case or controversy: 
“it must appear that the complaining State has 
suffered a wrong through the action of the other State, 
furnishing ground for judicial redress, or is asserting 
a right against the other State which is susceptible of 
13
judicial enforcement according to the accepted 
principles of the common law or equity systems of 
jurisprudence.” Maryland v. Louisiana, 451 U.S. 725, 
735-36 (1981) (internal quotations omitted). Plaintiff 
State has standing under those rules.4
With voting, “‘the right of suffrage can be denied 
by a debasement or dilution of the weight of a citizen’s 
vote just as effectively as by wholly prohibiting the 
free exercise of the franchise.’” Bush II, 531 U.S. at 
105 (quoting Reynolds, 377 U.S. at 555). In 
presidential elections, “the impact of the votes cast in 
each State is affected by the votes cast for the various 
candidates in other States.” Anderson v. Celebrezze, 
460 U.S. 780, 795 (1983). Thus, votes in the Defendant 
States affect the votes in the Plaintiff State, as set 
forth in more detail below.
a. Plaintiff State suffers an injury 
in fact.
The citizens of Plaintiff State have the right to 
demand that all other States abide by the 
constitutionally set rules in appointing Presidential 
Electors to the Electoral College. “No right is more 
precious in a free country than that of having a voice 
in the election of those who make the laws under 
which, as good citizens, we must live. Other rights, 
4 At its constitutional minimum, standing doctrine measures 
the necessary effect on plaintiffs under a tripartite test: 
cognizable injury to the plaintiffs, causation by the challenged 
conduct, and redressable by a court. Lujan v. Defenders of 
Wildlife, 504 U.S. 555, 561-62 (1992). The rules for standing in 
state-versus-state actions is the same as the rules in other 
actions under Article III. See Maryland v. Louisiana, 451 U.S. 
725, 736 (1981).
14
even the most basic, are illusory if the right to vote is 
undermined.” Wesberry, 376 U.S. at 10; Yick Wo v. 
Hopkins, 118 U.S. 356, 370 (1886) (“the political 
franchise of voting” is “a fundamental political right, 
because preservative of all rights”). “Every voter in a 
federal … election, whether he votes for a candidate 
with little chance of winning or for one with little 
chance of losing, has a right under the Constitution to 
have his vote fairly counted.” Anderson v. United 
States, 417 U.S. 211, 227 (1974); Baker v. Carr, 369 
U.S. 186, 208 (1962). Put differently, “a citizen has a 
constitutionally protected right to participate in 
elections on an equal basis with other citizens in the 
jurisdiction,” Dunn v. Blumstein, 405 U.S. 330, 336 
(1972), and—unlike the residency durations required 
in Dunn—the “jurisdiction” here is the entire United 
States. In short, the rights at issue are cognizable
under Article III.
Significantly, Plaintiff State presses its own form 
of voting-rights injury as a State. As with the oneperson, one-vote principle for congressional 
redistricting in Wesberry, the equality of the States 
arises from the structure of the Constitution, not from 
the Equal Protection or Due Process Clauses. See
Wesberry, 376 U.S. at 7-8; id. n.10 (expressly not 
reaching claims under Fourteenth Amendment). 
Whereas the House represents the People 
proportionally, the Senate represents the States. See
U.S. CONST. art. V, cl. 3 (“no state, without its consent, 
shall be deprived of its equal suffrage in the Senate”). 
While Americans likely care more about who is elected 
President, the States have a distinct interest in who 
is elected Vice President and thus who can cast the tie-
15
breaking vote in the Senate. Through that interest, 
Plaintiff State suffers an Article III injury when 
another State violates federal law to affect the 
outcome of a presidential election. This injury is 
particularly acute in 2020, where a Senate majority 
often will hang on the Vice President’s tie-breaking 
vote because of the nearly equal—and, depending on 
the outcome of Georgia run-off elections in January, 
possibly equal—balance between political parties. 
Quite simply, it is vitally important to the States who 
becomes Vice President.
Because individual citizens may arguably suffer 
only a generalized grievance from Electors Clause 
violations, Plaintiff State has standing where its
citizen voters would not, Lance v. Coffman, 549 U.S. 
437, 442 (2007) (distinguishing citizen plaintiffs from 
citizen relators who sued in the name of a state). In 
Massachusetts v. Environmental Protection Agency, 
549 U.S. 497 (2007), this Court held that states 
seeking to protect their sovereign interests are 
“entitled to special solicitude in our standing 
analysis.” Id. at 520. While Massachusetts arose in a 
different context—the same principles of federalism 
apply equally here to require special deference to the 
sovereign states on standing questions.
In addition to standing for their own injuries, 
States can assert parens patriae standing for their
citizens who are Presidential Electors.
5 Like 
5 “The ‘parens patriae’ doctrine … is a recognition of the 
principle that the state, when a party to a suit involving a matter 
of sovereign interest, ‘must be deemed to represent all its 
citizens.’” New Jersey v. New York, 345 U.S. 369, 372-73 (1953) 
(quoting Kentucky v. Indiana, 281 U.S. 163, 173 (1930)).
16
legislators, Presidential Electors assert “legislative 
injury” whenever allegedly improper actions deny 
them a working majority. Coleman v. Miller, 307 U.S. 
433, 435 (1939). The Electoral College is a zero-sum 
game. If the Defendant States’ unconstitutionally 
appointed Electors vote for a presidential candidate 
opposed by the Plaintiff State’s presidential electors, 
that operates to defeat the Plaintiff State’s interests.6
Indeed, even without an electoral college majority, 
presidential electors suffer the same voting-debasement injury as voters generally: “It must be 
remembered that ‘the right of suffrage can be denied 
by a debasement or dilution of the weight of a citizen’s 
vote just as effectively as by wholly prohibiting the 
free exercise of the franchise.’” Bush II, 531 U.S. at 
105 (quoting Reynold, 377 U.S. at 555). Those injuries 
to electors serve as an Article III basis for a parens 
patriae action by their States.
b. The Defendant States caused the 
injuries.
Non-legislative officials in the Defendant States 
either directly caused the challenged violations of the 
Electors Clause or, in the case of Georgia, acquiesced 
to them in settling a federal lawsuit. The Defendants 
thus caused the Plaintiff’s injuries.
6 Because Plaintiff State appointed its presidential electors 
fully consistent with the Constitution, it suffers injury if its 
presidential electors are defeated by the Defendant States’ 
unconstitutionally appointed presidential electors. This injury is 
all the more acute because Plaintiff State has taken steps to 
prevent fraud. Unlike the Defendant States, the Plaintiff State 
neither weakened nor allowed the weakening of its ballotintegrity statutes by non-legislative means.
17
c. The requested relief would 
redress the injuries.
This Court has authority to redress the Plaintiff 
State’s injuries, and the requested relief will do so.
First, while the Defendant States are responsible 
for their elections, this Court has authority to enjoin 
reliance on unconstitutional elections: 
When the state legislature vests the right to 
vote for President in its people, the right to 
vote as the legislature has prescribed is 
fundamental; and one source of its fundamental nature lies in the equal weight 
accorded to each vote and the equal dignity 
owed to each voter.
Bush II, 531 U.S. at 104; City of Boerne v. Flores, 521 
U.S. 507, 524 (1997) (“power to interpret the 
Constitution in a case or controversy remains in the 
Judiciary”). The Plaintiff State does not ask this Court 
to decide who won the election; they only ask that the 
Court enjoin the clear violations of the Electors Clause 
of the Constitution.
Second, the relief that the Plaintiff State 
requests—namely, remand to the State legislatures to 
allocate presidential electors in a manner consistent 
with the Constitution—does not violate the Defendant 
States’ rights or exceed this Court’s power. The power 
to select presidential electors is a plenary power of the 
legislatures, and this remains so, without regard to 
state law:
This power is conferred upon the legislatures 
of the States by the Constitution of the United 
States, and cannot be taken from them or 
modified by their State constitutions…. 
18
Whatever provisions may be made by statute, 
or by the state constitution, to choose electors 
by the people, there is no doubt of the right of 
the legislature to resume the power at any 
time, for it can neither be taken away nor 
abdicated.
McPherson v. Blacker, 146 U.S. 1, 35 (1892) (internal 
quotations omitted); accord Bush I, 531 U.S. at 76-77; 
Bush II, 531 U.S at 104.
Third, uncertainty of how the Defendant States’ 
legislatures will allocate their electors is irrelevant to 
the question of redressability:
If a reviewing court agrees that the agency 
misinterpreted the law, it will set aside the 
agency’s action and remand the case – even 
though the agency … might later, in the 
exercise of its lawful discretion, reach the 
same result for a different reason.
FEC v. Akins, 524 U.S. 11, 25 (1998). The Defendant 
States’ legislatures would remain free to exercise 
their plenary authority under the Electors Clause in 
any constitutional manner they wish. For example, 
they may review the presidential election results in 
their State and determine that winner would be the 
same, notwithstanding the violations of state law in 
the conduct of the election. Or they may appoint the 
Electors themselves, either appointing all for one 
presidential candidate or dividing the State’s Electors 
and appointing some for one candidate and some for 
another candidate. Or they may take any number of 
actions that would be consistent with the 
Constitution. Under Akins, the simple act of 
19
reconsideration under lawful means is redress 
enough.
Fourth, the requested relief is consistent with 
federal election law: “Whenever any State has held an 
election for the purpose of choosing electors, and has 
failed to make a choice on the day prescribed by law, 
the electors may be appointed on a subsequent day in 
such a manner as the legislature of such State may 
direct.” 3 U.S.C. § 2. Regardless of the statutory 
deadlines for the Electoral College to vote, this Court 
could enjoin reliance on the results from the 
constitutionally tainted November 3 election, remand
the appointment of Electors to the Defendant States, 
and order the Defendant States’ legislatures to certify 
their Electors in a manner consistent with the 
Constitution, which could be accomplished well in 
advance of the statutory deadline of January 6 for the 
House to count the presidential electors’ votes. 3 
U.S.C. § 15.
4. Plaintiff State has prudential 
standing.
Beyond the constitutional baseline, standing 
doctrine also poses prudential limits like the zone-ofinterests test, Ass’n of Data Processing Serv. Org., Inc. 
v. Camp, 397 U.S. 150, 153 (1970), and the need for 
those seeking to assert absent third parties’ rights to 
have their own Article III standing and a close 
relationship with the absent third parties, whom a 
sufficient “hindrance” keeps from asserting their 
rights. Kowalski v. Tesmer, 543 U.S. 125, 128-30 
(2004). Prudential doctrines pose no barrier here.
First, the injuries asserted here are “arguably 
within the zone of interests to be protected or 
20
regulated by the … constitutional guarantee in 
question.” Camp, 397 U.S. at 153. The Court has 
relied on the structure of the Constitution to provide 
the one-person, one-vote standard, Wesberry, 376 U.S. 
at 7-8 & n.10, and this case is no different. The 
structure of the Electoral College provides that each 
State is allocated a certain number of presidential 
electors depending upon that State’s representation in 
Congress and that each State must abide by 
constitutional requirements in the appointment of its 
Electors. When the elections in one State violate 
those requirements in a presidential election, the 
interests of the citizens in other States are harmed.
Second, even if parens patriae standing were not 
available, States have their own injury, a close 
relationship with their citizens, and citizens may 
arguable lack standing to assert injuries under the 
Electors Clause. See, e.g., Bognet v. Sec’y Pa., No. 20-
3214, 2020 U.S. App. LEXIS 35639, at *18-26 (3d Cir. 
Nov. 13, 2020). States, by contrast, have standing to 
assert such injuries. Lance, 549 U.S. at 442 
(distinguishing citizen plaintiffs who suffer a 
generalized grievance from citizen relators who sued 
in the name of a state); cf. Massachusetts, 549 U.S. at 
520 (federal courts owe “special solicitude in standing 
analysis”). Moreover, anything beyond Article III is 
merely prudential. Caplin & Drysdale v. United 
States, 491 U.S. 617, 623 n.3 (1989). Thus, States also 
have third-party standing to assert their citizens’ 
injuries.
21
5. This action is not moot and will not 
become moot.
None of the looming election deadlines are 
constitutional, and they all are within this Court’s 
power to enjoin. Indeed, if this Court vacated a State’s 
appointment or certification of presidential electors, 
those Electors could not vote on December 14, 2020; if 
the Court vacated their vote after the fact, the House 
of Representatives could not count those votes on 
January 6, 2021. There would be ample time for the 
Defendant States’ legislatures to appoint new 
presidential electors in a manner consistent with the 
Constitution. Any remedial action can be complete 
well before January 6, 2020. Indeed, even the 
swearing in of the next President on January 20, 2021,
will not moot this case because review could outlast 
even the selection of the next President under “the 
‘capable of repetition, yet evading review’ doctrine,” 
which applies “in the context of election cases … when 
there are ‘as applied’ challenges as well as in the more 
typical case involving only facial attacks.” FEC v. 
Wisconsin Right to Life, Inc., 551 U.S. 449, 463 (2007) 
(internal quotations omitted); accord Norman v. Reed, 
502 U.S. 279, 287-88 (1992). Mootness is not, and will 
not become, an issue here.
6. This matter is ripe for review.
The Plaintiff State’s claims are clearly ripe now, 
but they were not ripe before the election: “A claim is 
not ripe for adjudication if it rests upon contingent 
future events that may not occur as anticipated, or 
indeed may not occur at all.” Texas v. United States, 
523 U.S. 296, 300 (1998) (internal quotations and 
22
citations omitted).7 Prior to the election, there was no 
reason to know who would win the vote in any given 
State. 
Ripeness also raises the question of laches, which 
Justice Blackmun called “precisely the opposite argument” from ripeness. Lujan v. Nat’l Wildlife Fed’n, 
497 U.S. 871, 915 n.16 (1990) (Blackmun, J., 
dissenting). Laches is an equitable defense against 
unreasonable delay in commencing suit. Petrella v. 
MGM, 572 U.S. 663, 667 (2014). This action was 
neither unreasonably delayed nor is prejudicial to the 
Defendant States. 
Before the election, the Plaintiff State had no ripe 
claim against a Defendant State:
“One cannot be guilty of laches until his right 
ripens into one entitled to protection. For only 
then can his torpor be deemed inexcusable.”
What-A-Burger of Va., Inc. v. Whataburger, Inc., 357 
F.3d 441, 449-50 (4th Cir. 2004) (quoting 5 J. Thomas 
McCarthy, MCCARTHY ON TRADEMARKS AND UNFAIR 
COMPETITION § 31: 19 (4th ed. 2003); Gasser Chair Co. 
v. Infanti Chair Mfg. Corp., 60 F.3d 770, 777 (Fed. Cir. 
1995) (same); Profitness Physical Therapy Ctr. v. ProFit Orthopedic & Sports Physical Therapy P.C., 314 
F.3d 62, 70 (2d Cir. 2002) (same). The Plaintiff State 
could not have brought this action before the election 
results. Nor did the full extent of the county-level 
deviations from election statutes in the Defendant 
7 It is less clear whether this matter became ripe on or soon 
after election night when the networks “called” the election for 
Mr. Biden or significantly later when enough States certified 
their vote totals to give him 270-plus anticipated votes in the 
electoral college.
23
States become evident until days after the election. 
Moreover, a State may reasonably assess the status of 
litigation commenced by candidates to the 
presidential election prior to commencing its own 
litigation. Neither ripeness nor laches presents a 
timing problem here.
7. This action does not raise a nonjusticiable political question.
The “political questions doctrine” does not apply 
here. Under that doctrine, federal courts will decline 
to review issues that the Constitution delegates to one 
of the other branches—the “political branches”—of 
government. While appointing presidential electors 
involves political rights, this Court has ruled in a line 
of cases beginning with Baker that constitutional 
claims related to voting (other than claims brought 
under the Guaranty Clause of Article IV, §4) are 
justiciable in the federal courts. As the Court held in 
Baker, litigation over political rights is not the same 
as a political question:
We hold that this challenge to an 
apportionment presents no nonjusticiable 
“political question.” The mere fact that the 
suit seeks protection of a political right does 
not mean it presents a political question. Such 
an objection “is little more than a play upon 
words.”
Baker, 369 U.S. at 209. This is no political question; it 
is a constitutional one that this Court should answer.
8. No adequate alternate remedy or 
forum exists.
In determining whether to hear a case under this 
Court’s original jurisdiction, the Court has considered 
24
whether a plaintiff State “has another adequate forum 
in which to settle [its] claim.” United States v. Nevada, 
412 U.S. 534, 538 (1973). This equitable limit does not 
apply here because Plaintiff State cannot sue 
Defendant States in any other forum.
To the extent that Defendant States wish to avail 
themselves of 3 U.S.C. § 5’s safe harbor, Bush I, 531 
U.S. at 77-78, this action will not meaningfully stand 
in their way:
The State, of course, after granting the 
franchise in the special context of Article II, 
can take back the power to appoint electors. … 
There is no doubt of the right of the legislature 
to resume the power at any time, for it can 
neither be taken away nor abdicated[.]
Bush II, 531 U.S. at 104 (citations and internal 
quotations omitted).8 The Defendant States’ legislature will remain free under the Constitution to 
appoint electors or vote in any constitutional manner 
they wish. The only thing that they cannot do—and 
should not wish to do—is to rely on an allocation 
conducted in violation of the Constitution to 
determine the appointment of presidential electors.
Moreover, if this Court agrees with the Plaintiff 
State that the Defendant States’ appointment of 
presidential electors under the recently conducted 
elections would be unconstitutional, then the 
statutorily created safe harbor cannot be used as a 
8 Indeed, the Constitution also includes another backstop: “if 
no person have such majority [of electoral votes], then from the 
persons having the highest numbers not exceeding three on the 
list of those voted for as President, the House of Representatives 
shall choose immediately, by ballot.” U.S. CONST. amend. XII.
25
justification for a violation of the Constitution. The 
safe-harbor framework created by statute would have 
to yield in order to ensure that the Constitution was 
not violated.
It is of no moment that Defendants’ state laws may 
purport to tether state legislatures to popular votes. 
Those state limits on a state legislature’s exercising 
federal constitutional functions cannot block action 
because the U.S. Constitution “transcends any 
limitations sought to be imposed by the people of a 
State” under this Court’s precedents. Leser v. Garnett, 
258 U.S. 130, 137 (1922); see also Bush I, 531 U.S. at 
77; 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”). 
As this Court recognized in McPherson v. Blacker, the 
authority to choose presidential electors: 
is conferred upon the legislatures of the states 
by the Constitution of the United States, and 
cannot be taken from them or modified by 
their state constitutions. ... Whatever 
provisions may be made by statute, or by the 
state constitution, to choose electors by the 
people, there is no doubt of the right of the 
legislature to resume the power at any time, for 
it can neither be taken away or abdicated.
146 U.S. 1, 35 (1892) (emphasis added) (internal 
quotations omitted). The Defendant States would 
suffer no cognizable injury from this Court’s enjoining 
their reliance on an unconstitutional vote.
26
B. The Plaintiff State is likely to prevail on 
the merits.
For interim relief, the most important factor is the 
likelihood of movants’ prevailing. Winter, 555 U.S. at
20. The Defendant States’ administration of the 2020 
election violated the Electors Clause, which renders 
invalid any appointment of presidential electors based 
upon those election results. For example, even 
without fraud or nefarious intent, a mail-in vote not 
subjected to the State legislature’s ballot-integrity 
measures cannot be counted. It does not matter that a 
judicial or executive officer sought to bypass that 
screening in response to the COVID pandemic: the 
choice was not theirs to make. “Government is not free 
to disregard the [the Constitution] in times of crisis.”
Roman Catholic Diocese of Brooklyn, New York v. 
Cuomo, 592 U.S. ___ (Nov. 25, 2020) (Gorsuch, J., 
concurring). With all unlawful votes discounted, the 
election result is an open question that this Court 
must address. Under 3 U.S.C. § 2, the State 
legislatures may answer the question, but the 
question must be asked here.
1. Defendant States violated the 
Electors Clause by modifying their 
legislatures’ election laws through 
non-legislative action.
The Electors Clause grants authority to State 
Legislatures under both horizontal and vertical 
separation of powers. It provides authority to each 
State—not to federal actors—the authority to dictate 
the manner of selecting presidential electors. And 
within each State, it explicitly allocates that authority 
to a single branch of State government: to the 
27
“Legislature thereof.” U.S. Const. Art. II, § 1, cl. 2. 
State legislatures’ primacy vis-à-vis non-legislative 
actors—whether State or federal—is even more 
significant than congressional primacy vis-à-vis State 
legislatures. 
The State legislatures’ authority is plenary. Bush 
II, 531 U.S. at 104. It “cannot be taken from them or 
modified” even through “their state constitutions.”
McPherson, 146 U.S. at 35; Bush I, 531 U.S at 76-77; 
Bush II, 531 U.S at 104. The Framers allocated 
election authority to State legislatures as the branch 
closest—and most accountable—to the People. See, 
e.g., Robert G. Natelson, The Original Scope of the 
Congressional Power to Regulate Elections, 13 U. PA.
J. CONST. L. 1, 31 (2010) (collecting Founding-era 
documents); cf. THE FEDERALIST NO. 57, at 350 (C. 
Rossiter, ed. 2003) (Madison, J.) (“House of 
Representatives is so constituted as to support in its 
members an habitual recollection of their dependence 
on the people”). Thus, only the State legislatures are 
permitted to create or modify the respective State’s 
rules for the appointment of presidential electors. U.S.
CONST. art. II, § 1, cl. 2.
Regulating election procedures is necessary both 
to avoid chaos and to ensure fairness:
Common sense, as well as constitutional law, 
compels the conclusion that government must 
play an active role in structuring elections; as 
a practical matter, there must be a substantial regulation of elections if they are to be fair 
and honest and if some sort of order, rather 
than chaos, is to accompany the democratic 
processes.
28
Burdick v. Takushi, 504 U.S. 428, 433 (1992) (interior 
quotations omitted). Thus, for example, deadlines are 
necessary to avoid chaos, even if some votes sent via 
absentee ballot do not arrive timely. Rosario v. 
Rockefeller, 410 U.S. 752, 758 (1973). Even more 
importantly in this pandemic year with expanded 
mail-in voting, ballot-integrity measures—e.g., 
witness requirements, signature verification, and the 
like—are an essential component of any legislative 
expansion of mail-in voting. See CARTER-BAKER, at 46 
(absentee ballots are “the largest source of potential 
voter fraud”). Though it may be tempting to permit a 
breakdown of the constitutional order in the face of a 
global pandemic, the rule of law demands otherwise.
Specifically, because the Electors Clause makes 
clear that state legislative authority is exclusive, nonlegislative actors lack authority to amend statutes. 
Republican Party of Pa. v. Boockvar, No. 20-542, 2020 
U.S. LEXIS 5188, at *4 (Oct. 28, 2020) (“there is a 
strong likelihood that the State Supreme Court 
decision violates the Federal Constitution”) (Alito, J., 
concurring); Wisconsin State Legis., No. 20A66, 2020 
U.S. LEXIS 5187, at *11-14 (Oct. 26, 2020) 
(Kavanaugh, J., concurring in denial of application to 
vacate stay); cf. Grayned v. City of Rockford, 408 U.S. 
104, 110 (1972) (“it is not within our power to construe 
and narrow state laws”); Free Enter. Fund v. Pub. Co. 
Accounting Oversight Bd., 561 U.S. 477, 509-10 (2010) 
(“editorial freedom … [to “blue-pencil” statutes] 
belongs to the Legislature, not the Judiciary”). That 
said, courts can enjoin elections or even enforcement 
of unconstitutional election laws, but they cannot 
rewrite the law in federal presidential elections.
29
For example, if a state court enjoins or modifies 
ballot-integrity measures adopted to allow absentee 
or mail-in voting, that invalidates ballots cast under 
the relaxed standard unless the legislature has—prior 
to the election—ratified the new procedure. Without 
pre-election legislative ratification, results based on 
the treatment and tabulation of votes done in 
violation of state law cannot be used to appoint 
presidential electors.
Elections must be lawful contests, but they should 
not be mere litigation contests where the side with the 
most lawyers wins. As with the explosion of nationwide injunctions, the explosion of challenges to State 
election law for partisan advantage in the lead-up to 
the 2020 election “is not normal.” Dep’t of Homeland 
Sec. v. New York, 140 S. Ct. 599, 600 (2020) (Gorsuch, 
J., concurring in the grant of stay). Nor is it healthy. 
Under the “Purcell principle,” federal courts generally 
avoid enjoining state election laws in the period close 
to an election. Purcell, 549 U.S. at 4-5 (citing “voter 
confusion and consequent incentive to remain away 
from the polls”). Purcell raises valid concerns about 
confusion in the run-up to elections, but judicial 
election-related injunctions also raise post-election
concerns. For example, if a state court enjoins ballotintegrity measures adopted to secure absentee or 
mail-in voting, that invalidates ballots cast under the 
relaxed standard unless the State legislature has had 
time to ratify the new procedure. Without either preelection legislative ratification or a severability clause 
in the legislation that created the rules for absentee 
voting by mail, the state court’s actions operate to 
violate the Electors Clause.
30
2. State and local administrator’s 
systemic failure to follow State 
election law qualifies as an unlawful 
amendment of State law.
When non-legislative state and local executive 
actors engage in systemic or intentional failure to 
comply with their State’s duly enacted election laws, 
they adopt by executive fiat a de facto equivalent of an 
impermissible amendment of State election law by an 
executive or judicial officer. See Section II.B.1, supra.
This Court recognizes an executive’s “consciously and 
expressly adopt[ing] a general policy that is so 
extreme as to amount to an abdication of its statutory 
responsibilities” as another form of reviewable final 
action, even if the policy is not a written policy. 
Heckler v. Chaney, 470 U.S. 821, 833 n.4 (1985) 
(interior quotations omitted); accord id. at 839 
(Brennan, J., concurring). Without a bona fide
amendment to State election law by the legislature, 
executive officers must follow state law. Cf. Morton v. 
Ruiz, 415 U.S. 199, 235 (1974); Service v. Dulles, 354 
U.S. 363, 388-89 (1957). The wrinkle here is that the 
non-legislative actors lack the authority under the 
federal Constitution to enact a bona fide amendment, 
regardless of whatever COVID-related emergency 
power they may have.9
9 To advance the principles enunciated in Jacobson v. 
Massachusetts, 197 U.S. 11 (1905) (concerning state police power 
to enforce compulsory vaccination laws), as authority for nonlegislative state actors re-writing state election statutes—in 
direct conflict with the Electors Clause—is a nonstarter. Clearly, 
“the Constitution does not conflict with itself by conferring, upon 
the one hand, a … power, and taking the same power away, on 
the other, by the limitations of the due process clause.” 
31
This form of executive nullification of State law by 
statewide, county, or city officers is a variant of 
impermissible amendment by a non-legislative actor. 
See Section II.B.1, supra. Such nullification is always
unconstitutional, but it is especially egregious when it 
eliminates legislative safeguards for election integrity 
(e.g., signature and witness requirements for absentee 
ballots, poll watchers10). Systemic failure by 
statewide, county, or city election officials to follow 
State election law is no more permissible than formal 
amendments by an executive or judicial actor.
III. THE OTHER WINTER-HOLLINGSWORTH
FACTORS WARRANT INTERIM RELIEF.
Although Plaintiff State’s likelihood of prevailing
would alone justify granting interim relief, relief is 
also warranted by the other Winter-Hollingsworth
factors. 
Brushaber v. Union Pac. R. Co., 240 U.S. 1, 24 (1916). In other 
words, the States’ reserved police power does not abrogate the 
Constitution’s express Electors Clause. See also Cook v. Gralike, 
531 U.S. at 522 (election authority is delegated to States, not 
reserved by them); accord Story, 1 COMMENTARIES § 627.
10 Poll watchers are “prophylactic measures designed to prevent election fraud,” Harris v. Conradi, 675 F.2d 1212, 1216 n.10 
(11th Cir. 1982), and “to insure against tampering with the 
voting process.” Baer v. Meyer, 728 F.2d 471, 476 (10th Cir. 
1984). For example, poll monitors reported that 199 Chicago 
voters cast 300 party-line Democratic votes, as well as three 
party-line Republican votes in one election. Barr v. Chatman,
397 F.2d 515, 515-16 & n.3 (7th Cir. 1968).
32
A. Plaintiff State will suffer irreparable 
harm if the Defendant States’ 
unconstitutional presidential electors 
vote in the Electoral College.
Allowing the unconstitutional election results in 
Defendant States to proceed would irreparably harm 
Plaintiff State and the Republic both by denying 
representation in the presidency and in the Senate in 
the near term and by permanently sowing distrust in 
federal elections. This Court has found such threats to 
constitute irreparable harm on numerous occasions. 
See note 2, supra (collecting cases). The stakes in this 
case are too high to ignore.
B. The balance of equities tips to the 
Plaintiff State.
All State parties represent citizens who voted in 
the 2020 presidential election. Because of their 
unconstitutional actions, Defendant States represent 
some citizens who cast ballots not in compliance with 
the Electors Clause. It does not disenfranchise anyone 
to require the State legislatures to attempt to resolve 
this matter as 3 U.S.C. § 2, the Electors Clause, and 
even the Twelfth Amendment provide. By contrast, it 
would irreparably harm Plaintiff State if the Court 
denied interim relief. 
In addition to ensuring that the 2020 presidential 
election is resolved in a manner consistent with the 
Constitution, this Court must review the violations 
that occurred in the Defendant States to enable 
Congress and State legislatures to avoid future chaos 
and constitutional violations. Unless this Court acts 
to review this presidential election, these 
33
unconstitutional and unilateral violations of state 
election laws will continue in the future.
C. The public interest favors interim relief.
The last Winter factor is the public interest. When 
parties dispute the lawfulness of government action, 
the public interest collapses into the merits. ACLU v. 
Ashcroft, 322 F.3d 240, 247 (3d Cir. 2003); Washington 
v. Reno, 35 F.3d 1093, 1103 (6th Cir. 1994); League of 
Women Voters of the United States v. Newby, 838 F.3d 
1, 12 (D.C. Cir. 2016). If the Court agrees with 
Plaintiff State that non-legislative actors lack 
authority to amend state statutes for selecting 
presidential electors, the public interest requires 
interim relief. Withholding relief would leave a taint
over the election, disenfranchise voters, and lead to 
still more electoral legerdemain in future elections. 
Electoral integrity ensures the legitimacy of not 
just our governmental institutions, but the Republic 
itself. See Wesberry, 376 U.S. at 10. “Voters who fear 
their legitimate votes will be outweighed by 
fraudulent ones will feel disenfranchised.” Purcell,
549 U.S. at 4. Against that backdrop, few cases could 
warrant this Court’s review more than this 
extraordinary case arising from a presidential 
election. In addition, the constitutionality of the 
process for selecting the President is of extreme 
national importance. If the Defendant States are 
permitted to violate the requirements of the 
Constitution in the appointment of their presidential 
electors, the resulting vote of the Electoral College not 
only lacks constitutional legitimacy, but the 
Constitution itself will be forever sullied.
34
The nation needs this Court’s clarity: “It is 
emphatically the province and duty of the judicial 
department to say what the law is.” Marbury v. 
Madison, 5 U.S. (1 Cranch) 137, 177 (1803). While 
isolated irregularities could be “garden-variety”
election irregularities that do not raise a federal 
question,11 the unconstitutional setting-aside of state 
election statutes by non-legislative actors calls both 
the result and the process into question, requiring this 
Court’s “unsought responsibility to resolve the federal 
and constitutional issues the judicial system has been 
forced to confront.” Bush II, 531 U.S. at 111. The 
public interest requires this Court’s action.
IV. ALTERNATIVELY, THIS CASE WARRANTS 
SUMMARY DISPOSITION.
In lieu of granting interim relief, this Court could 
simply reach the merits summarily. Cf. FED. R. CIV. P.
65(a)(2); S.Ct. Rule 17.5. Two things are clear from the 
evidence presented at this initial phase: (1) nonlegislative actors modified the Defendant States’ 
election statutes; and (2) the resulting uncertainty 
casts doubt on the lawful winner. Those two facts are 
enough to decide the merits of the Electors Clause 
claim. The Court should thus vacate the Defendant 
States’ appointment and impending certifications of 
presidential electors and remand to their State 
legislatures to allocate presidential electors via any 
constitutional means that does not rely on 2020 
11 “To be sure, ‘garden variety election irregularities’ may not 
present facts sufficient to offend the Constitution’s guarantee of 
due process[.]” Hunter v. Hamilton Cty. Bd. of Elections, 635 F.3d 
219, 232 (6th Cir. 2011) (quoting Griffin v. Burns, 570 F.2d 1065, 
1077 (1st Cir. 1978)).
35
election results that includes votes cast in violation of 
State election statutes in place on Election Day.
CONCLUSION
This Court should first administratively stay or 
temporarily restrain the Defendant States from 
voting in the electoral college until further order of 
this Court and then issue a preliminary injunction or 
stay against their doing so until the conclusion of this 
case on the merits. Alternatively, the Court should 
reach the merits, vacate the Defendant States’ elector 
certifications from the unconstitutional 2020 election 
results, and remand to the Defendant States’ 
legislatures pursuant to 3 U.S.C. § 2 to appoint 
electors.
December 7, 2020 Respectfully submitted,
Ken Paxton*
Attorney General of Texas
Brent Webster
First Assistant Attorney 
General of Texas
Lawrence Joseph
Special Counsel to the Attorney 
General of Texas
36
Office of the Attorney General
P.O. Box 12548 (MC 059)
Austin, TX 78711-2548
kenneth.paxton@oag.texas.gov
(512) 936-1414
* Counsel of Record

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