TALLAHASSEE — When Texas’ attorney general announced he was suing four swing states in a last-ditch attempt to overturn the results of the 2020 election, lawyers in Florida Attorney General Ashley Moody’s office scoffed.
One lawyer called it “bats--t insane.”
Another called it “weird.”
Despite the criticisms, Moody came out in support of Texas’ lawsuit the next day, co-signing a brief along with 16 other Republican attorneys general urging the U.S. Supreme Court to hear Texas’ case.
“The integrity and resolution of the 2020 election is of paramount importance,” Moody tweeted at the time.
Emails from Moody’s office show that the day before she agreed to lend support to Texas’ lawsuit, her own attorneys were mocking the case, its legal arguments and the motivations behind it.
Texas Attorney General Ken Paxton, a Republican, filed his lawsuit more than a month after the Nov. 3 election, when former President Donald Trump and his supporters were claiming that widespread voter fraud in a handful of states cost him the election.
Paxton sued Georgia, Pennsylvania, Michigan and Wisconsin, states that already had certified their results, alleging “voting irregularities” there tainted election results. Biden won all four states.
The case was considered a long shot with a flimsy legal argument: Paxton claimed that the “irregularities” harmed Texas, and that the Legislatures in the four states should be left to choose how their state votes in the electoral college. Republicans controlled the Legislatures in all four states.
The case garnered immediate national attention and caught the eye of attorneys working for Florida’s solicitor general, the group of lawyers in the Attorney General’s Office who can decide whether the state should appeal a case to the Florida Supreme Court or U.S. Supreme Court.
Evan Ezray, deputy solicitor general, sent an email out to the lawyers about the filing and noted that it was “interesting” that the case didn’t appear to be coming from Texas’ solicitor general’s office.
“Bats--t insane, which is why (Texas’ solicitor general) is not on it,” replied Christopher Baum, senior deputy solicitor general.“Must be the only guy in the Texas AG’s front office who didn’t quit/wasn’t fired for alleging that Paxton committed crimes.”
A month earlier, seven top aides in Paxton’s office asked federal law enforcement to investigate allegations of improper influence, abuse of office, bribery and other potential crimes by Paxton, according to the Austin-American Statesman. Paxton, a Republican, was federally indicted on multiple counts of securities fraud in 2015, but the case has yet to go to trial. Texas’ solicitor general resigned in January.
Baum wrote that a colleague noted that “perhaps this is Paxton’s request for a pardon,” implying that the lawsuit was an attempt to curry favor with Trump. Trump did not issue Paxton a pardon.
Florida’s team of appellate lawyers also criticized the legal reasoning in Paxton’s case, particularly the idea that a state could inject itself into another state’s election.
“What’s the theory for how one state has standing to allege Bush v. Gore violations against another state …,” wondered Chief Deputy Solicitor General James Percival, referring to the lawsuit that ended Florida’s recount and settled the presidential election in 2000.
“ ‘Because,’ ” Baum replied.
“It also seems weird to cite Marbury v. Madison for the proposition that the court should get involved in a political dispute,” Percival responded, referring to the landmark 1803 U.S. Supreme Court case that established that courts can strike down laws they find unconstitutional.
Ezray wrote that Texas says, “they suffer harm as a state when other state’s violate ‘constitutional’ election law.”
“… which would be true in any election case,” Baum replied. “So Massachusetts has standing to sue Mississippi for illegally gerrymandered districts?”
It’s not clear from the emails whether Moody was aware of their opinions. Later that evening, Missouri’s solicitor general sent an urgent email to his counterparts in Florida and other states asking if they’d be willing to sign a brief urging the Supreme Court justices to hear Texas’ case.
After at least one phone call with her top deputies, Moody agreed to sign on to the brief the next day, according to the emails.Members of her press office crafted Moody’s tweet about it for later that day, emails show.
On Dec. 11, two days later, the U.S. Supreme Court declined to hear it, citing similar reasoning as Moody’s lawyers.
“Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections,” the court wrote.
Moody spokesperson Lauren Cassedy disregarded the correspondence by the appellate attorneys.
“Clearly this was water cooler conversation by a few employees in response to breaking news and prior to any request to join a jurisdictional brief,” Cassedy wrote. “There was strong legal analysis to support the Supreme Court hearing and deciding this case on such a novel issue.”
“As the Attorney General has previously said she wanted the Supreme Court to review and decide this matter to prevent future confusion and erosion of voter confidence.”
The emails were obtained from American Oversight, a progressive-leaning group that requests public records from state and federal governments.
The group’s executive director, Austin Evers, blasted Moody’s decision to join the lawsuit.
“The Office of the Florida Attorney General joined in an unprecedented and dangerous effort to overturn the 2020 election despite knowing the legal arguments were baseless,” Evers said in a statement. “This is the epitome of bad faith and a gross misuse of official resources in service of the ‘big lie’ and putting party over country.”