STATE OF TEXAS, Plaintiff, v. COMMONWEALTH OF PENNSYLVANIA, STATE OF GEORGIA, STATE OF MICHIGAN, AND STATE OF WISCONSIN, Defendants

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
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.
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
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
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.
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
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
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
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).

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