Last week Congressman Lee Zeldin joined almost two-thirds of the House Republicans to sign on to an amicus (friend of the Court) brief in support of the recently dismissed Texas lawsuit seeking to invalidate millions of votes in the battleground states won by Joseph Biden.
Prior to the Texas case, there have been at least five dozen challenges in various legal forums in eight different states, all save one having been dismissed, many with blistering rebukes from the jurists who heard them. As an example, the Republican Pennsylvania State Legislature brought one of the cases, resulting in a scathing 37-page opinion from the U.S. District Court dismissing the matter. The Pennsylvania Republicans appealed to the Third Circuit Court of Appeals who affirmed the dismissal stating “voters, not lawyers, choose the President.”
This decision was authored by a Trump-appointed Circuit Court Judge, joined by two other Republican appointees. This, as well as the dozens of other dismissed lawsuits brought by Trump and his allies, should make every American gratified to see our judicial institutions are functioning properly, despite party affiliation.
By signing on to this lawsuit, the GOP signators are telling us that final decisions of voters can be challenged without a basis in fact if the results are not to their liking. This astounding proposition suggests that an individual state should have standing to challenge millions of votes in another state, a concept the Supreme Court dismissed within moments of reviewing the briefs. Notably, it appears the Republican concept of states’ rights is not significant enough to override the desire to invalidate millions of votes in another state as the motivation appears to be fear of incurring the wrath of Mr. Trump and not the rule of law.
Make no mistake, what Congressman Zeldin has done by signing on to this specious lawsuit was no less than a brazen attempt to disenfranchise millions of voters, a concept that carries a logical inconsistency in that all of these Republicans, like Mr. Zeldin, were reelected on the same allegedly invalid ballots.
“This is so much bigger than this year’s presidential race … Election laws and state constitutions were blatantly ignored by certain officials to tilt an election in a different direction,” says Congressman Zeldin. This statement is unequivocally false. It demonstrates a complete misreading of the U.S. Constitution’s Elector’s Clause and depends on the completely meritless claims of voter fraud. Notably, in the Pennsylvania case, the Appeals Court stated that “charges require specific allegations and then proof. We have neither here.”
In most, if not all, of the dozens of dismissed cases, the Trump lawyers withdrew the fraud claims as they had no proof. This has been validated by Attorney General William Barr, who, even as a Trump loyalist, has publicly proclaimed the lack of evidence of fraud in the presidential election, a statement which likely caused his departure.
It should be clear to every constituent of the First Congressional District that Congressman Zeldin’s act of signing on to this legally meritless Texas lawsuit with 125 other Republican members of Congress is an affront to all of us. It is the perpetuation of a lie which continues to divide us and constitutes an offense to the Constitution that will leave an indelible stain, a stain that becomes increasingly hard to erase.
“Every American who cares about the rule of law should take comfort that the Supreme Court — including all three of President Trump’s picks -— closed the book on this nonsense.” This statement was made by Senator Ben Sasse, Republican of Nebraska, and one of the most conservative members of the Senate.
Ben Ginsburg, considered one of America’s leading election lawyers and lifelong Republican, famous for leading the successful Florida legal battle in Bush v. Gore, has characterized the Texas suit as legal nonsense.
The good news is that our judicial institutions have held up to this attack. As someone who has spent 12 years on the New York State Supreme Court bench, I believe nothing is more sacred than that the rule of law doesn’t break under this assault, an assault for which Congressman Zeldin bears a heavy responsibility.
It is my view that this is nothing less than a dangerous attack on our rule of law and the democratic values under which we all live. Congressman Zeldin’s knowingly false declarations about these issues undermines the very foundation of our society and creates a friendly environment for the anti-democratic forces in America.
This not only violates his duty as a lawyer, it is profoundly un-American.
Mr. Mayer lives in Riverhead. He is a retired Justice of the Supreme Court of New York and former prosecutor.