Nonexistent States ‘New California’ and ‘New Nevada’ File SCOTUS Brief in Support of Ken Paxton

A California attorney who lives in Nevada filed a brief on behalf of two would-be states with the U.S. Supreme Court on Thursday in order to bolster Texas Attorney General Ken Paxton‘s (R) argument that Pennsylvania, Georgia, Michigan and Wisconsin should have their 2020 election results overturned in favor of President Donald Trump.

“New California State and New Nevada State are directly impacted by the arbitrary and capricious changes in election laws and procedures [that] occur with unfortunate regularity in the current States of California and Nevada,” the proposed amicus brief says–asserting their interest in the case that the Supreme Court has yet to accept.

The brief in support of Texas and other Republican-dominated states also leans heavily into exposition that catalogues complaints, griefs and gripes with the political situation in the extant Golden and Silver States–concerns said to necessitate the “New” political formations.

“Part of the reason for the formation of New California State and New Nevada Sate is to stop the lawless actions of Governors Newsome [sic] (California) and Sisolak (Nevada),” the filing continues. “An opinion by [the Supreme Court] affirming a national, uniform rule of law re-establishing the supremacy of The Electors Clause of Article II, §1 of the United States Constitution will resolve some of the complaints causing the establishment of these new states.”

The proposed brief does, however, largely stick to supporting the GOP’s effort to undo Joe Biden’s win in the four pivotal states–and their Electoral College votes–at issue. Repeatedly invoking various permutations of the word “usurpation,” the argument reiterates a theme that quickly became common among the litany of GOP briefs filed in service of the Lone Star State’s long-shot high court bid.

“I think the Texas lawsuit has a lot of merit,” the attorney-of-record for New California State and New Nevada State, Robert Ellsworth Thomas III told Law&Crime during a brief phone call. “And I expect the Supreme Court to take it and make a ruling of some kind.”

But Thomas said the aspiring states’ own concerns might even outweigh Texas’s own legal theory of harm here.

“We joined because Texas talked about attenuated harm–they still have harm–but it’s more theoretical,” the attorney said. “In California and Nevada we have governors who are acting arbitrarily and capriciously and not in accord with the U.S. Constitution. And that has caused us to say ‘we are really the aggrieved party here’ and [the Supreme Court should] consider this and hear our brief.”

The filing makes the following claim in support of that argument:

The executive branch at the state level and at the county level have stripped away legislatively-imposed safeguards from voting by mail. The executive branch in both California and Nevada authorized the sending of unrequested ballots to all voters resulting in stacks of ballots on the street without a chain of custody.

The heart of that argument is constant throughout various GOP legal filings and reflected–with a focus on California and Nevada–in Thomas’s filing. Namely, that elected officials in various states (along with certain non-elected elections bodies like in Wisconsin) usurped the constitutionally-granted power of state legislatures to make “plenary” decisions about how elections are conducted and how slates of electors are ultimately decided.

Legal experts have been almost uniformly skeptical of those claims.

Many legal observers took the opportunity of Thomas’s brief to take potshots at the attorney for his bar licensing and domicile on Friday–arguing an alleged incongruity with living in one state while supporting the future creation of nascent political jurisdictions/entities.

“New Nevada is a state in formation and it is going to be formed out of the rural counties of Nevada–everything except Clark County,” Debra Gaylord-Thomas, who sits on New Nevada’s board of directors told Law&Crime during a brief phone call. “The process we’re using is outlined in Article IV Section III of the U.S. Constitution.”

New California State is a 501c4 corporation with similar aims, according to the group’s website.

Those would-be new states, advocates hope, will be carved out of the existing states of California and Nevada–and would seek to remain part of the United States of America if successful. Gaylord-Thomas stressed that her organization’s work is not a separatist movement and cited the current political differences between rural and urban Nevada as the impetus behind the breakaway effort.

Others advised some form of sanction for the attorney’s Supreme Court brief.

Third Circuit-focused appellate attorney Matthew Stiegler suggested via Twitter that Thomas should be “disbarred lickety split.”

Thomas has been a member of the State Bar of California (extant California) since 1974, according to his attorney licensee profile, after graduating from the University of San Diego School of Law.

Thomas currently lives in Pahrump, Nevada (extant Nevada), an unincorporated town of some 38,000 resident that sits adjacent to the (actual) California-Nevada border and which often seems like it could have been invented by Hunter S. Thompson as a heavy-handed, satirical lodestar for the state of American society.

Pahrump is frequently famous for its ever-rotating cast of characters-residents who serve as gadflies for the national appetite–including famed and seminal broadcaster Art Bell and somewhat recently deceased brothel owner and HBO star Dennis Hof.

Election law expert and University of California, Irvine School of Law Professor Rick Hasen sought to contextualize Thomas’s filing as not particularly out-of-nowhere–but of a piece with the conservative movement’s combined legal efforts so far.

“A lot of lawyers should face court sanctions for some of the filings in the courts seeking to overturn the result of the election,” Hasen tweeted. “And no, not just the lawyers for New California and New Nevada.”

[images Kirk Irwin/Getty Images for SiriusXM]

Have a tip we should know? [email protected]