“Ted Cruz continues his attack on our democracy to please the man who publicly called his wife ugly,” sniffed former congressman turned Never Trumper Joe Walsh upon hearing this news. Honestly, at this point, Trump must regret having never insulted Cruz’s kids. Look how much loyal service he’s gotten from him after having insulted his wife and his father during the 2016 primary.

Insulting the whole family might have earned him “Lyin’ Ted’s” undying devotion, assuming he hasn’t earned that already.

This cynical stunt will trigger another round of false optimism among hardcore election truthers, who believe that the facts and the law are on their side and all they need is the right advocate in front of Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett to earn Trump another term in office. Ted Cruz is a Harvard Law grad, a former Supreme Court clerk, and an old hand at arguing in front of SCOTUS due to his time as Texas’s solicitor general. Surely he’ll convince Barrett and the conservative majority to make Trump president for life.

He won’t. But the point of championing Mike Kelly’s lawsuit in Pennsylvania, as Cruz has been doing for the past week, isn’t to win. It’s to earn brownie points with the Trump fans who still haven’t quite forgiven him for running against Trump in 2016 and then refusing to endorse him at the GOP convention. The entire suite of post-election litigation by Trump and his allies is less about the law than it is about building a “lost cause” narrative in which the heroic Trumpy forces fight valiantly but ultimately lose to evil judges. Cruz is joining the fight and he desperately hopes you remember it when he eventually runs for president again.

Because of the importance of the legal issues presented, I've publicly urged #SCOTUS to hear the case brought by Congressman Mike Kelly, congressional candidate Sean Parnell & state rep. candidate Wanda Logan challenging the constitutionality of the POTUS election results in PA.

— Ted Cruz (@tedcruz) December 7, 2020

As I said last week, the bitter division and acrimony we see across the Nation needs resolution. I believe #SCOTUS has a responsibility to the American People to ensure, within its powers, that we are following the law and following the Constitution.

— Ted Cruz (@tedcruz) December 7, 2020

All you need to know about this guy, who he is and how he operates, lies in that last tweet. Kelly’s lawsuit, if successful, would invalidate mail-in ballots in Pennsylvania and essentially void that state’s election. If you think there’s “bitter division and acrimony” now, go ahead and have the Supreme Court flush seven million votes in Pennsylvania down the toilet.

Cruz doesn’t care a thing about bitter division and acrimony, any more than he cares about Trump mocking his family. He cares about his presidential ambitions. If he cared about acrimony, he wouldn’t be offering to act as front man for a lawsuit whose goal is nakedly anti-democratic in service to keeping a demagogue in power for four more years after the American people voted to remove him.

Ed has written repeatedly about Kelly’s lawsuit, first after the Pennsylvania Supreme Court tossed the case, then after Cruz urged SCOTUS to hear the appeal, then again after Justice Samuel Alito agreed to review it and decide whether to refer it to the full Court. The core complaint in the suit is that Act 77, a law passed by the state legislature allowing mail-in voting in Pennsylvania, violated part of the state constitution that requires in-person voting. The state supreme court dismissed the complaint on grounds that it was too late; the time to challenge mail-in ballots was before everyone voted, not after. But the plaintiffs would have lacked standing if they had challenged the law before the election since no one had cast a mail ballot yet. Cruz calls that a Catch-22. If you can’t sue before the vote and you can’t sue after, when can you sue?

But Ed’s posts have addressed that claim. For one thing:

Sounds rather ridiculous to me. (We actually see parallel kssue in admin law all the time, and the solution is to file the early suit, lose, and then fact of prior suit overcomes laches/waiver claim).

— Jonathan H. Adler (@jadler1969) December 2, 2020

One of the judges on the Pennsylvania Supreme Court also argued that there actually was a time before the election when Act 77 could have been challenged in court — specifically, before this year’s primary election.

Respondents’ recitations lay bare Petitioners’ want of diligence in this case. Petitioners could have brought this action at any time between October 31, 2019, when Governor Wolf signed Act 77 into law, and April 28, 2020, when this Court still retained exclusive jurisdiction over constitutional challenges to it. See Act 77 § 13(2)-(3). The claims then could have been adjudicated finally before the June primary, when no-excuse mail-in voting first took effect under Act 77—and certainly well before the General Election, when millions of Pennsylvania voters requested, received, and returned mail-in ballots for the first time. Petitioners certainly knew all facts relevant to their present claims during that entire period.

The worst part of the appeal to SCOTUS is that Kelly and Cruz are clearly trying to bootstrap some sort of federal constitutional issue into this case so that they have grounds to bring it before what they assume will be a friendlier court. A state’s supreme court, not the U.S. Supreme Court, is the final authority on that state’s law — unless some federal question is implicated in their ruling. Law prof Steve Vladeck marveled yesterday that a conservative like Cruz, supposedly a proponent of federalism and state power, would be straining to find reasons here to have the matter removed from Pennsylvania to the big court in Washington.

9. In that respect, this is the *opposite* of the (still-pending) challenge to late-arriving mail-in ballots. There, the argument is that, *because* the PA legislature didn't authorize late-arriving mail-in ballots, the PA Supreme Court violated the U.S. Constitution by doing so.

— Steve Vladeck (@steve_vladeck) December 6, 2020

11. All the PA Supreme Court did was to hold that the state legislature didn't violate the state constitution in expanding mail-in voting. But the U.S. Constitution has *nothing to say* about how state courts enforce their own constitutions against state legislatures. Full stop.

— Steve Vladeck (@steve_vladeck) December 6, 2020

As Vladeck noted elsewhere, even if SCOTUS agreed with Cruz and Kelly and invalidated Pennsylvania’s mail-in ballots, which there’s a 0.0 percent chance of happening, Biden still wins the presidency. PA is worth 20 electoral votes and there are no similar complaints pending in other swing states which might also prevail that would knock Sleepy Joe down below 270 electoral votes. Most Trump fans are following the procession of lawsuits from a bottom-line standpoint of “Will winning this case reverse the outcome of the election?” and the answer here is no. But from Cruz’s standpoint, none of that matters. Again, for him this is all about earning goodwill with Trump voters. Now that he’s offered to argue the case, any result serves his interests. If he were to win the case against all odds, obviously that’s a home run for his populist reputation. But even if he loses, or if SCOTUS declines to hear the appeal, that’s still a win by because he made it known to righties that he’s willing to fight for the lost cause. Even if the result were to disenfranchise seven million Pennsylvanians.

Trump voters will think of him fondly in years to come for doing this. And everyone else will think of him even less fondly than they did before.

Another former Supreme Court clerk turned Republican senator with presidential ambitions is also in the news today for a populist pander, but his pander is a lot more productive than Cruz’s is. Go read about Josh Hawley making common cause with Bernie Sanders to try to get another round of $1,200 stimulus checks sent to Americans as part of the next COVID relief deal by encouraging Trump to veto any deal that doesn’t provide them. Hawley knows that the sort of populism prized by GOP primary voters is cultural populism, not economic, but showing working-class people that he’s thinking about their bottom lines too can only help him build stature.