Response of Attorney General Ken Paxton and

First Assistant Attorney General Brent Webster

To Complaints from Kevin Moran, David Chew,
Neil Cohen, and Brynne VanHettinga
JUSTICE THOMAS, dissenting from the denial of certiorari.
The Constitution gives to each state legislature authority to determine the
“Manner” of federal elections. Art. I, §4, cl. 1; Art. II, §1, cl. 2. Yet both before and
after the 2020 election, nonlegislative officials in various States took it upon themselves to
set the rules instead. As a result, we received an unusually high number of petitions
and emergency applications contesting those changes. The petitions here present a
clear example. The Pennsylvania Legislature established an unambiguous deadline
for receiving mail-in ballots: 8 p.m. on election day. Dissatisfied, the Pennsylvania
Supreme Court extended that deadline by three days. The court also ordered
officials to count ballots received by the new deadline even if there was no
evidence—such as a postmark—that the ballots were mailed by election day. That
decision to rewrite the rules seems to have affected too few ballots to change the
outcome of any federal election. But that may not be the case in the future. These
cases provide us with an ideal opportunity to address just what authority
nonlegislative officials have to set election rules, and to do so well before the next
election cycle. The refusal to do so is inexplicable.
Republican Party of Pennsylvania v. Degraffenreid, 141 S. Ct. 732–33 (2021) (Thomas, J., dissenting
from the denial of certiorari) (emphasis added).
I. Bar Complaints Should Not Be a Popularity Contest
The passage quoted above, from Justice Thomas’s dissent from the denial of certiorari in a
Pennsylvania election contest just a few months ago—with which Justices Alito and Gorsuch
agreed in a separate dissent, see id. at 738— in just one paragraph affirms both the legal and factual
validity of the bill of complaint that Texas sought leave to file against Pennsylvania in December
2020.
We rightly celebrate historical lawyers like John Adams and Clarence Darrow—and even
fictitious figures such as Atticus Finch—because they stood for and demanded the rule of law
regardless of whether their client or their cause was popular. Unpopularity inheres in election law
contests—where our two-party system frequently presents zero-sum scenarios and any substantial
legal question is likely to provoke partisan ire. Whichever side a lawyer takes, he or she can
anticipate resentment and rancorous attacks from the opposing side.
Such was undeniably the case with Texas v. Pennsylvania, et al. In the end, seventeen (17)
States, through their attorneys general, joined Texas’s pleadings in some capacity. See Brief of State
of Missouri and 16 Other States as Amici Curiae in Support of Plaintiff’s Motion for Leave to File Bill
of Complaint (the “Missouri Brief”).1 Twenty (20) other States, plus the District of Columbia and

1All citations to items in the Supreme Court case file may be found at the following web address:
https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/22o155
.html.
1
the territories of Guam and the U.S. Virgin Islands, filed as amici in opposition and in support of
the four (4) defendant States. See Motion for Leave to File and Brief as Amici Curiae in Support of
Defendants and in Opposition to Plaintiff’s Motion for Leave to File a Bill of Complaint. Arizona and
Ohio, too, filed amicus briefs supporting neither side. Nonetheless, Arizona urged the Court that
“election integrity is of paramount importance” and that, should the Court take up the case, “it is
equally important that the Court act quickly to give the Nation certainty.” Motion for Leave to File
an Amicus Brief for the State of Arizona and Mark Brnovich, Arizona Attorney General, at 1-2. For
Ohio’s part, it emphasized “the need for a Supreme Court ruling, at the earliest available
opportunity, on the proper application of the [Electors] Clause to cases in which state courts or
state executive officers alter election rules in presidential elections.” Motion for Leave to File and
Brief of Amicus Curiae Ohio in Support of Neither Party, at 1. Fully forty-four (44) of the States were
before the United States Supreme Court in some capacity in connection with this application to
proceed in its original jurisdiction.
In the end, the Court ruled, and dismissed the motion on standing grounds—an almost-
daily occurrence in courthouses across the country, often in some of the most hard-fought and
sophisticated cases. See infra at pp. 7–10. Standing doctrine is, of course, complex and, some would
say, not infrequently inconsistent and variable. See, e.g., TransUnion LLC v. Ramirez, No. 20-297,
2021 WL 2599472, at *19, *20, *23 (U.S. June 25, 2021) (Thomas, J., dissenting). But that ruling
does not invalidate the strong Constitutional and legal underpinnings of the Pleadings, and the
solid evidentiary support—part of it (the Pennsylvania part) affirmed in Justice Thomas’s
comments excerpted at the top of this response.
Partisan rancor about the case nonetheless persisted even after the Court pronounced its
ruling. The State Bar Disciplinary Counsel has advised that a total of eighty-four (84) Grievances
were brought against Attorney General Paxton and First Assistant Brent Webster (81 against the
former and 3 against the latter) for filing pleadings in Texas v. Pennsylvania. All of them were
reviewed and dismissed by the Office of Chief Disciplinary Counsel, including the four (4)
(hereafter, “the Complaints”) responded to herein.
What is special about these four Complaints—or these four Complainants—that
necessitates a response? Certainly it is not their specificity or the clarity of legal analysis. It is not
even clear from the substance of their complaints that the complainants have read what
Respondents filed. And, as discussed infra, despite the Complaints’ conclusory and unsupported
assertions, there is nothing frivolous, fraudulent, or un-candid about Texas’s filings. They are well-
grounded and defensible—albeit unsuccessful—court filings.
As important as that point is—or should be, in the typical Bar disciplinary investigation
response—it is the smaller issue here. The larger issue is, rather, the role of the State Bar in its
oversight of the legal profession. Will it continue to defend even lawyers who support unpopular
or controversial causes, or clients? Will it impartially apply and enforce the Disciplinary Rules in a
politically neutral manner? Or will it, instead, depart from the rule of law and yield to the partisan
clamor of non-client non-parties whose only apparent interest is to prolong the political fight after
the court case has concluded?
This is, indeed, a matter of some moment. Disciplinary decisions must not be resolved
pursuant to a popularity contest. The Bar should adhere, instead, to the best traditions of Texas
and American justice, and for the reasons stated herein dismiss these Complaints. Attorney
2
General Ken Paxton and First Assistant Attorney General Brent Webster did not violate the Texas
Disciplinary Rules of Professional Conduct.
II. TEXAS’S FILINGS WERE NOT FRIVOLOUS, AND ATTORNEY GENERAL PAXTON AND
FIRST ASSISTANT WEBSTER DID NOT VIOLATE THE DISCIPLINARY RULES
A. Background: This Was an Important and Hotly Contested Case.
On December 7, 2020, the State of Texas invoked the original jurisdiction of the United
States Supreme Court2 and filed a lawsuit against the Commonwealth of Pennsylvania and the
States of Georgia, Michigan, and Wisconsin (Defendant States). Counsel for the State of Texas
were Ken Paxton, Attorney General of Texas (counsel of record), Brent Webster, First Assistant
Attorney of Texas, and Lawrence Joseph, Special Counsel to the Attorney General of Texas.
Specifically, Texas initially filed (1) a Motion for Leave to File a Bill of Complaint in that
Court, with an attached Bill of Complaint and a Brief in Support of its Motion for Leave to File a
Bill of Complaint, (2) a Motion for Expedited Consideration with 151 pages of declarations
attached as exhibits, and (3) a Motion for Preliminary Injunction and Temporary Restraining Order
or, Alternatively, for Stay and Administrative Stay (collectively referred to herein, together with
two reply briefs, as “the Pleadings”). No. 22O155, Original.3
Texas alleged that “the 2020 election suffered from significant and unconstitutional
irregularities in the Defendant States.” Motion for Leave to File a Bill of Complaint at 1. In
particular, it alleged:
• Non-legislative actors in the Defendant States “usurped their legislatures’ authority
and unconstitutionally revised their states’ election statutes … through executive fiat
or friendly lawsuits,” in violation of the Electors Clause,4 which provides that only the
legislatures of the States are permitted to determine the rules for appointing
presidential electors.
• Those purported amendments created different voting standards within the Defendant
States and violated the one-person, one-vote principle, in violation of the Equal
Protection Clause.5

2 See 28 U.S.C. § 2851(a) (“The Supreme Court shall have original and exclusive jurisdiction of all
controversies between two or more States.”); Supreme Court Rule 17(a), (c) (“This Rule applies
only to an action invoking the Court’s original jurisdiction . . . The initial pleading shall be preceded
by a motion for leave to file, and may be accompanied by a brief in support of the motion.”);
Supreme Court Rule 32(g) (identifying a motion filed under Rule 17 as a “Motion for Leave to File
a Bill of Complaint and Brief in Support”).
3 https://www.supremecourt.gov/docket/docketfiles/html/public/22o155.html (Docket Sheet).
4 U.S. CONST., Art. II, § 1, cl. 2.
5 U.S. CONST., Amend. IV, § 1.
3
 • They also constituted patent and fundamental unfairness and intentional failure to
follow the law, in violation of the Due Process Clause.6
Id. at 1–2; Bill of Complaint at 36–39.
Among Texas’s specific allegations against the Defendant States were the following:
Pennsylvania. At the time of filing, Pennsylvania’s 20 electoral votes went to Biden by
81,597 votes: 3,445,548 to 3,363,951—a margin of approximately 0.12%. Texas alleged that
Pennsylvania’s Secretary of State, without legislative approval, unilaterally abrogated several
Pennsylvania statutes requiring signature verification for absentee or mail-in ballots by settling a
lawsuit. Bill of Complaint at 14–15. It also alleged that the Pennsylvania Supreme Court extended
statutory deadlines to receive mail-in ballots, supposedly acting under a state constitutional
provision that “Elections shall be free and equal.” Id. at 15. It also alleged that the Pennsylvania
Secretary of State authorized local election officials to examine absentee and mail-in ballots before
7:00 a.m. on Election Day, in violation of a statute to the contrary, and in violation of a statute
governing how such ballots must be canvassed. Id. at 16–17. Texas alleged that these non-legislative
modifications “appear to have generated an outcome-determinative number of unlawful ballots
that were cast in Pennsylvania.” Id. at 20.7
Georgia. At the time of filing, Georgia’s 16 electoral votes went to Biden by 12,670 votes:
2,472,098 to 2,458,121—a margin of approximately 0.26%. Texas alleged that the Georgia
Secretary of State unilaterally, without legislative approval, changed a statutory requirement
prohibiting the opening of absentee ballots before Election Day. Id. at 20–21. It also alleged that
the Secretary of State settled a lawsuit in a way that violated statutory requirements concerning
the rejection of incomplete absentee ballots, which resulted in a rejection rate of 0.37% (4,786
absentee ballots out of 1,305,659 cast), versus the rejection rate in 2016 of 6.42%. Id. at 21–23. Texas
alleged that this was outcome-determinative. Id. at 23.8
Michigan. At the time of filing, Michigan’s 16 electoral votes went to Biden by 146,007
votes: 2,796,702 to 2,650,695—a margin of approximately 2.7%. Texas alleged that the Michigan
Secretary of State violated Michigan statutes by sending absentee ballots to every voter in
Michigan, contrary to statutes allowing clerks (not the Secretary of State) to supply absentee
ballots only to those voters who requested one.9 Id. at 24–25. It also alleged that the Secretary of
State allowed absentee ballots to be requested online without signature verification as expressly
required by Michigan statutes. Id. at 25–26. Texas alleged that both of these actions unilaterally

6 Id.
7Texas detailed Electors Clause violations committed by Pennsylvania at ¶¶43-53 of the Bill of
Complaint, and at pages 9-14 of its Reply in Support of Motion for Leave to File Bill of Complaint.
8Texas detailed Electors Clause violations committed by Georgia at ¶¶66-72 of the Bill of
Complaint, and at pages 17-20 of its Reply in Support of Motion for Leave to File Bill of Complaint.
9Cf. State v. Hollins, 620 S.W.3d 400, 403 (Tex. Oct. 7, 2020) (per curiam) (enjoining the Harris
County Clerk’s plan to send absentee ballots to every voter in Harris County because the plan was
unauthorized by the Election Code) (“The question before us is not whether voting by mail is good
policy or not, but what policy the Legislature has enacted. It is purely a question of law.”).
4
abrogated Michigan election statutes without legislative approval and resulted in 3.2 million
absentee votes cast, in contrast to 2016, when only 587,618 absentee ballots had been requested by
voters. Id. at 26. Texas also alleged that local officials in Wayne County (which Biden won by
322,925 votes) violated statutory requirements regarding access to vote counting and canvassing
by poll watchers and inspectors. Id. at 26–29.10
Wisconsin. At the time of filing, Wisconsin’s 10 electoral votes went to Biden by 20,565
votes: 1,630,716 to 1,610,151—a margin of approximately 0.63%. Texas alleged that the Wisconsin
Elections Commission and local officials violated statutes governing “alternate absentee ballot
site[s]” by allowing absentee ballots to be placed in hundreds of unstaffed drop boxes. Id. at 30–32.
It also alleged that the Clerks of Dane County and Milwaukee County (which Biden collectively
won by 364,298 votes) encouraged voters to falsely claim to be “indefinitely confined,” which
would allow them to exercise their vote in ways contrary to Wisconsin statutes. Id. at 32–34.11
Biden won the election by 306 electoral votes to 232. Had Trump won the Defendant
States’ electoral votes, Trump would have won the election, 294 to 244. Thus, the election
irregularities alleged by Texas presented a facial case of materiality to the outcome of the 2020
presidential election.
Texas argued that it had standing on behalf of its citizens because, first, “‘the right of
suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as
effectively as by wholly prohibiting the free exercise of the franchise.’” Bush v. Gore, 531 U.S. 98,
105 (2000) (quoting Reynolds v. Sims, 377 U. S. 533, 555 (1964)) (Bush II). In other words, [Texas]
is acting to protect the interests of its respective citizens in the fair and constitutional conduct of
elections used to appoint presidential electors.” Id. at 8–9. Second, Texas also claimed standing to
assert the rights of its citizens “to demand that all other States abide by the constitutionally set
rules in appointing presidential electors to the electoral college.” Id. at 12. Third, Texas also
claimed standing “[b]ecause individual citizens may arguably suffer only a generalized grievance
from Electors Clause violations, States have standing where their citizen voters would not.” Id. at
13. Fourth, Texas claimed “States can assert parens patriae standing for their citizens who are
presidential electors.” Id. at 14.
Texas also argued that it had standing on its own behalf because, first, it “presses its own
form of voting-rights injury as States. As with the one-person, one-vote principle for congressional
redistricting, the equality of the States arises from the structure of the Constitution, not from the
Equal Protection or Due Process Clauses.” Id. at 12 (citation omitted). Second:
Whereas the House represents the People proportionally, the Senate represents the
States. While Americans likely care more about who is elected President, the States
have a distinct interest in who is elected Vice President and thus who can cast the
tiebreaking vote in the Senate. Through that interest, States suffer an Article III
injury when another State violates federal law to affect the outcome of a presidential

10Texas detailed Electors Clause violations committed by Michigan at ¶¶79-93 of the Bill of
Complaint, and at pages 14-17 of its Reply in Support of Motion for Leave to File Bill of Complaint.
11
Texas detailed Electors Clause violations committed by Wisconsin at ¶¶105-126 of the Bill of
Complaint, and at pages 20-22 of its Reply in Support of Motion for Leave to File Bill of Complaint.
5
 election…. Quite simply, it is vitally important to the States who becomes Vice
President.”
Id. at 13 (citation omitted).
On December 9, Trump filed a motion to intervene,12 in which he agreed with Texas’s
Electors Clause argument. Whatever else may be said of Texas’s standing arguments, Trump
certainly had standing as a presidential candidate. And if Trump had standing, then the Supreme
Court should have considered Texas’s case: “Only one of the petitioners needs to have standing
to permit us to consider the petition for review.” Massachusetts v. E.P.A., 549 U.S. at 518. But the
Supreme Court never ruled on Trump’s motion to intervene.
As noted above, several states filed amicus briefs. Missouri, joined by sixteen (16) other
states (all of which Trump won),13 submitted an amicus brief in support of Texas. Six of those states
also filed a motion to intervene as parties on Texas’s side.14 The District of Columbia, joined by
twenty (20) states (all of which, except one, were won by Biden),15 submitted an amicus brief in
support of the Defendant States.
Ohio (won by Trump) and Arizona (won by Biden) filed amicus briefs in support of neither
party but, as also noted above, agreeing with Texas that the case was important, that the Court’s
original jurisdiction should be deemed non-discretionary, and that by taking up the case the Court

12Motion of Donald J. Trump, President of the United States, to Intervene in his Personal Capacity, as
Candidate for Re-Election, Proposed Bill of Complaint in Intervention, and Brief in Support of Motion to
Intervene.
13 Alabama, Arkansas, Florida, Indiana, Kansas, Louisiana, Mississippi, Montana, Nebraska, North

Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Utah, and West Virginia. Brief of
State of Missouri and 16 Other States as Amici Curiae in Support of Plaintiff’s Motion for Leave to File
Bill of Complaint at 1. Biden won one of Nebraska’s four electoral votes.
Motion of States of Missouri, Arkansas, Louisiana, Mississippi, South Carolina, and Utah to Intervene
14

and Proposed Bill of Complaint in Intervention.

15 California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts,

Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Rhode Island,
Vermont, Virginia, and Washington. Brief for the District of Columbia and the States and Territories
of California, Colorado, Connecticut, Delaware, Guam, Hawaii, Illinois, Maine, Maryland,
Massachusetts, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon,
Rhode Island, Vermont, Virginia, U.S. Virgin Islands, and Washington as Amici Curiae in Support of
Defendants and in Opposition to Plaintiff’s Motion for Leave to File a Bill of Complaint at 1. Trump
won North Carolina and one of Maine’s four electoral votes. North Carolina’s Attorney General,
who represented North Carolina in the District’s amicus brief, is a Democrat. Steve Bullock (a
Democrat), in his capacity as Governor of Montana, submitted an amicus brief supporting the
Defendant States, while Montana itself, represented by its Republican attorney general, joined an
amicus brief supporting Texas (supra n.13).
6
could give important guidance as to the proper application of the Electors Clause to the Defendant
States’ complained-of conduct and certainty to the Nation with respect to the election outcome.16
On December 11, 2020, the Supreme Court issued the following order: “The State of
Texas’s motion for leave to file a bill of complaint is denied for lack of standing under Article III of
the Constitution. Texas has not demonstrated a judicially cognizable interest in the manner in
which another State conducts its elections. All other pending motions are dismissed as moot.
Statement of Justice Alito, with whom Justice Thomas joins: In my view, we do not have discretion
to deny the filing of a bill of complaint in a case that falls within our original jurisdiction. I would
therefore grant the motion to file the bill of complaint but would not grant other relief, and I express
no view on any other issue.” Texas v. Pennsylvania, 141 S. Ct. 1230 (2020) (citation omitted). The
Supreme Court has denied a state leave to file a bill of complaint against another state six times
since 2016.17
The Office of Chief Disciplinary Counsel (CDC) received Grievances concerning Texas’s
lawsuit from Kevin Moran, David Chew, Neil Cohen, and Brynne VanHettinga, in addition to
eighty (80) other similar Grievances filed against either Attorney General Paxton or First Assistant
Brent Webster. The CDC determined that all eighty-four (84) of these grievances were Inquiries
and dismissed them. After appeals, the Board of Disciplinary Appeals (BODA) classified four (4)
of the above-referenced Grievances as Complaints and the CDC served Respondents with them
on or about June 15 and 16, 2021.
B. The Law Governing Federal Court Intervention Into Elections Is Complex and
Unresolved.
Legal scholars recognize that the legal issues raised by the Office of Attorney General in
Texas v. Pennsylvania are complex and unresolved:
[T]he legal structure [of federal court oversight of elections] is counterintuitive and
hardly simple. The unique legal architecture of American democracy—a product of
the original Constitutional design and subsequent legal additions built upon that
original structure—envisions a complex interlacing of federal and state interests in
matters of voting, elections and political participation…. Defining the boundary
line, then, between issues left to be resolved as a matter of state law and issues that
instead implicate distinct, federal constitutional interests, requires working out the

16
Motion for Leave to File and Brief of Amicus Curiae Ohio in Support of Neither Party (Ohio’s Brief);
Motion for Leave to File an Amicus Brief for the State of Arizona and Mark Brnovich, Arizona Attorney
General (Arizona’s Brief).
17
New Hampshire v. Massachusetts, 154 ORIG, 2021 WL 2637831, at *1 (U.S. June 28, 2021);
Montana v. Washington, 152 ORIG, 2021 WL 2637830, at *1 (U.S. June 28, 2021); Texas v.
California, 141 S. Ct. 1469 (2021); Arizona v. California, 140 S. Ct. 684, 206 L. Ed. 2d 175 (2020);
Missouri v. California, 139 S. Ct. 859 (2019); New Mexico v. Colorado, 137 S. Ct. 2319 (2017);
Nebraska v. Colorado, 577 U.S. 1211, 136 S. Ct. 1034, 194 L. Ed. 2d 545 (2016).
7
 intricate relationship between federal and state law that has long structured the
American democratic system—even for national offices.18
Texas’s lawsuit navigates these “counterintuitive and hardly simple” areas. Texas made
many arguments, some of which were literally without precedent, but all of which were “supported
by a good faith argument for an extension, modification or reversal of existing law.” Therefore,
they did not violate the Rules. See Rule 3.01 cmt. 2. See also FED. R. CIV. P. 13 (Notes of Advisory
Committee on Rules—1993 Amendment) (“Arguments for extensions, modifications, or reversals
of existing law or for creation of new law do not violate subdivision (b)(2) provided they are
‘nonfrivolous.’ This establishes an objective standard …”).
Lawyers who make novel arguments that ultimately fail to persuade judges do not
automatically violate the Rules, especially when the arguments are made in the partisan, highly-
charged, and complex area of election law. Should the Bar opt to police such arguments, it is not
inconceivable that dismissed election lawsuits could routinely be followed up by litigation before
the State Bar, its hearings panels, the Board of Disciplinary Appeals, and the courts of this state.
For instance, since 1961, state law has provided that the candidates of the party that won
the last Gubernatorial election shall appear first on the ballot. Miller v. Hughs, 471 F. Supp. 3d 768,
773 (W.D. Tex. 2020). For the 2020 election, when Republican party candidates appeared first on
the ballot, plaintiffs aligned with the Democratic party alleged that the law violated the First and
Fourteenth Amendments by imposing an undue burden on the right to vote and treated similarly-
situated political parties differently in violation the Equal Protection Clause. Id. These arguments
were unprecedented, and one could certainly think of them as “a stretch”—all the moreso,
perhaps, if one were not a Democrat. Judge Yeakel dismissed the case for lack of standing and
justiciability. Id. at 776–79.
If someone—anyone—complains to the CDC that the Miller v. Hughs lawsuit was
frivolous, or brought merely for political gain, must the plaintiffs’ lawyers be investigated for
unprofessional conduct? Does that apply to all election litigation, which is frequently partisan? Can
the CDC and BODA put partisan feelings aside and judge such cases in a non-partisan manner?
Respondents would argue that an investigation into the attorneys in the Miller v. Hughs lawsuit (or
a disciplinary complaint filed against them) would be an improper one – notwithstanding the fact
that the plaintiffs in such case are Democrats.
The better result is to presume that arguments in election litigation, even arguably partisan
ones, are “supported by a good faith argument for an extension, modification or reversal of existing
law,” barring clear proof to the contrary. See, e.g., TEX. R. CIV. P. 13 (“Courts shall presume that
pleadings, motions, and other papers are filed in good faith.”). No such proof is present in this
case. The CDC should dismiss the Complaints.
C. The Law of State Standing Is Also Complex and Unresolved.
Texas’s assertion that it had standing in Texas v. Pennsylvania could not have been
frivolous. There are no Supreme Court cases contrary to its position that it had standing, and its
argument was, at the very least, “supported by a good faith argument for an extension,

Samuel Issacharoff, Pamela S. Karlan, Richard H. Pildes, & Nathaniel Persily, The Law of
18

Democracy: Legal Structure of the Political Process (5th ed. 2016) at 1113–14.
8
modification or reversal of existing law.” Justices Thomas and Alito, moreover, disagreed with
the majority and, in dissent, opined that the Court should have granted the motion for leave and
accepted Texas’s bill of complaint. Respondents respectfully submit that a motion for leave to file
a bill of complaint that garners the assent of two Supreme Court Justices should not be deemed
“frivolous.”
Legal scholars recognize that standing is a “doctrine of almost indescribable complexity”;
and yet, even so, there are “special problems posed by the standing of States.”19 State standing is
one of the “specialized standing doctrines” to which it is “difficult to apply standing
precedents.”20
In 2007, the Supreme Court recognized that States have an easier time establishing
standing than other litigants. “It is of considerable relevance [to the standing inquiry] that the party
seeking review here is a sovereign State.” Massachusetts v. E.P.A., 549 U.S. 497, 518 (2007).
“States are not normal litigants for the purposes of invoking federal jurisdiction.” Id. States are
“entitled to special solicitude in our standing analysis.” Id. at 520. Professors Hickman and Pierce
have explained, “In Massachusetts v. EPA, the Court held that states have a special, preferred status
in standing disputes. The majority repeatedly refers to the significance of the state as the petitioner
and explicitly distinguishes the (apparently) less legally-significant potential interests of private
parties. The position is unprecedented. The Court had never even hinted at the existence of such
a special status for states before Massachusetts v. EPA.”21 It is fair to say that, since 2007, the legal
system is still working out the contours and doctrines of state standing.
Meanwhile, the very foundations of basic standing doctrine itself are being questioned
almost to this very day. “I write separately to explain why, following several pretty unsatisfying
encounters with it, I’ve come to doubt that current standing doctrine—and especially its injury-in-
fact requirement—is properly grounded in the Constitution’s text and history, coherent in theory,
or workable in practice.” Sierra v. City of Hallandale Beach, Florida, 996 F.3d 1110, 1115 (11th Cir.
2021) (Newsom, J., concurring) (quoted with approval in TransUnion LLC v. Ramirez, No. 20-
297, 2021 WL 2599472, at *19, *20, *23 (U.S. June 25, 2021) (Thomas, J., dissenting)). “Despite
nearly universal consensus about standing doctrine’s elements and sub-elements, applying the
rules has proven far more difficult than reciting them.” Id. at 1116. “[O]ur Article III standing
jurisprudence has jumped the tracks.” Id. at 1117. See also California v. Texas, 141 S. Ct. 2104, 2126
(2021) (Alito, J., dissenting) (noting the Court’s inconsistent application of State standing doctrine
and criticizing the majority’s “fundamental distortion of our standing jurisprudence.”).
In light of these unsettled doctrines, Attorney General Paxton and First Assistant Webster
could not have violated the Rules by asserting that Texas had standing to bring the suit. “[T]he
law is not always clear and never is static. Accordingly, in determining the proper scope of

19
Steven Gow Calabresi & Gary Larson, The U.S. Constitution: Creation, Reconstruction, the
Progressives, and the Modern Era (2020) at 580.
20
Martin H. Redish, Suzanna Sherry, & James E. Pfander, Federal Courts (8th ed. 2018) at 31.
21
Kristen E. Hickman & Richard J. Pierce, Federal Administrative Law: Cases and Materials (3d.
ed. 2019) at 1135.
9
advocacy, account must be taken of the law’s ambiguities and potential for change.” Rule 3.01 cmt.
1. That is especially the case here.
D. Texas’s Primary Argument—That the Defendant States Violated the Electors
Clause—Was Not Frivolous.
Texas’s primary allegation was that, by allowing election law to be changed by non-
legislative actors, the Defendant States violated the Electors Clause, which reads, “Each State
shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal
to the whole Number of Senators and Representatives to which the State may be entitled in the
Congress.”22
That allegation is supported by a leading election law treatise, which recognizes that the
Supreme Court’s first, unanimous opinion in Bush v. Gore, 531 U.S. 70 (2000) (Bush I) “suggests
that the constitutional delegation of authority in Art. II, § 1 of the Constitution is an exclusive grant
of authority to the state legislature to create the procedures for the state’s presidential electors.
The opinion further raises the possibility that no other state law (including the state constitution)
may intercede absent an express authorization from the legislature.”23 The treatise also teaches:
“Note that Art. II textually commits the manner of choosing presidential electors to the State
legislatures.”24 Likewise, the majority in the second, divided opinion in Bush v. Gore (Bush II)
stated that “the state legislature’s power to select the manner for appointing electors is plenary.”
531 U.S. 98, 114 (2000). “Plenary” means “Full; complete; entire <plenary authority>.”25 For
over one hundred years, the Supreme Court has recognized that the Electors Clause “leaves it to
the legislature exclusively to define the method” of appointment of electors. McPherson v. Blacker,
146 U.S. 1, 27 (1892). “[T]he practical construction of the [Electors Clause] has conceded plenary
power to the state legislatures in the matter of the appointment of electors.” Id. at 35.
Ohio’s Brief in support of neither party makes a strong case that Texas’s position was not
only non-frivolous, but desperately needed resolution. Ohio “urge[d] the Court to decide, at the
earliest available opportunity, whether state courts and state executive actors violate the Electors
Clause when they change the rules by which presidential elections are run.” Ohio’s Brief at 1.
In States around the country, judges and executive officials changed the rules that
would govern the election immediately preceding or during the election. If there is
anything more American than representative government, it is a firm conviction
that the rules ought not be changed after the game has begun. Because this Court
has never held that the Electors Clause forbids state courts and state executive
officers from meddling with state legislatures’ work, state courts and state
executive officers retained leeway to change the rules in the final stretch of election
season. It is not unreasonable to wonder—and many millions of Americans do—
whether those hastily implemented changes exposed the election systems to

22 U.S. CONST., Art. II, § 1, Cl. 2.

23 Issacharoff, et al., supra n. 18 at 1143–44.
24 Id. at 1137.
25
PLENARY, Black’s Law Dictionary (11th ed. 2019).
10
 vulnerabilities. Nor is it unreasonable to object on fairness grounds—as many
millions of Americans do—to changing the voting rules when the election is
impending and the changes’ impact on the results can be predicted. These concerns
undermine public confidence in the integrity of the electoral process. That
confidence is necessary if there is to be citizen participation in the democratic
process, which is itself necessary for the success of the American project.
Id. at 5 (internal quotations and citation omitted). Ohio also argued, “It may prove difficult at this
late date to fashion a remedy that does not create equal or greater harms. But there will be an
election in 2024, another four years after that, and so on. If only to prevent the doubts that have
tainted this election from arising again in some future election, the Court should decide, as soon as
possible, the extent of the power that the Electors Clause confers on state legislatures and
withholds from other actors.” Id. at 6.
Thus, neither Attorney General Paxton nor First Assistant Webster violated the Rules by
asserting that non-legislative actors in the Defendant States unconstitutionally changed their
states’ election laws in violation of the Electors Clause. Again, “[T]he law is not always clear and
never is static. Accordingly, in determining the proper scope of advocacy, account must be taken
of the law’s ambiguities and potential for change.” Rule 3.01 cmt. 1. Again, that is especially the
case here.
E. Texas’s Argument that the Defendant States Violated the Equal Protection
Clause and Due Process Clause Was Not Frivolous.
In the divided Bush v. Gore opinion (Bush II), seven Justices agreed that the Florida
Supreme Court’s rules for recounting ballots violated the Equal Protection Clause and Due
Process Clause. “Seven Justices of the Court agree that there are constitutional problems with the
recount ordered by the Florida Supreme Court that demand a remedy.” 531 U.S. at 111 (per curiam
opinion); see also id. at 110 (per curiam opinion) (“[T]he recount cannot be conducted in
compliance with the requirements of equal protection and due process.”); id. at 134 (Souter, J.,
dissenting (joined by Breyer, J.)) (“Petitioners have raised an equal protection claim (or,
alternatively, a due process claim) in the charge that unjustifiably disparate standards are applied
in different electoral jurisdictions to otherwise identical facts…. I can conceive of no legitimate
state interest served by these differing treatments of the expressions of voters’ fundamental rights.
The differences appear wholly arbitrary.”) (citation omitted).
Thus, neither Attorney General Paxton nor First Assistant Webster violated the Rules by
asserting that the Defendant States violated the Equal Protection Clause and the Due Process
Clause by changing election rules or by applying inconsistent or arbitrary standards. The Supreme
Court clearly recognizes that cause of action.
F. No Court Opinion Establishes that Texas’s Claims Are Frivolous.
A recurring theme in the Complaints is that many of Texas’s claims had already been
decided in the Defendant States’ favor by other courts before Texas filed the lawsuit, or that courts
have demonstrated Texas’s claims to be frivolous since that time. But none of the judicial opinions
cited are by the United States Supreme Court, none addressed State standing, and none of them
addressed the specific facts and arguments raised in Texas’s pleadings. Any subsequently-
occurring cases or rulings, moreover, can have no bearing on the factual or legal validity of Texas’s

11
arguments at the time it made them. Therefore, none of those judicial decisions show that Attorney
General Paxton and First Assistant Webster violated the Rules. As of this date, no ruling has been
made on the merits of Texas’s original jurisdiction claims raised in the Pleadings.
G. The Pleadings Do Not Contain Incorrect Factual Allegations. But Even If
They Did, that Alone Does Not Establish a Rules Violation.
This case sounded in the Court’s original jurisdiction under Article III, § 2, cl. 2 of the U.S.
Constitution. Accordingly, Texas’s Pleadings were effectively an original complaint; technically,
in fact, a motion for leave requesting leave to file an original complaint (with preliminary injunctive
relief also requested). This was, Respondents submit, a well-grounded motion for leave and
proposed complaint, for the reasons previously stated herein. The main thrust of Texas’s
argument was that the complained-of actions in these four Defendant States “constitute non-
legislative changes to State election law by executive-branch State election officials, or by judicial
officials . . . in violation of the Electors Clause.” Motion for Leave to File Bill of Complaint at 37,
¶132. Texas presented abundant evidence of these non-legislative departures from the
Constitutional design. See supra at 4-5 (summarizing the Pleadings’ State-specific allegations
against the Defendant States). Far more than was necessary to meet the relatively minimal
applicable legal standard, which requires only that “to the best of the person’s knowledge,
information, and belief, formed after an inquiry reasonable under the circumstances . . . (3) the
factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary
support after a reasonable opportunity for further investigation or discovery . . .. FED. R. CIV. P. 11(b)(3)
(emphasis added).
But if there was any deficiency in the Pleadings, or an inclusion of matters that were
allegedly “immaterial, impertinent, or scandalous,” the prescribed remedy for same is typically a
preliminary motion under FED. R. CIV. P. 12(b)(6) (motion to dismiss for failure to state a claim
upon which relief can be granted), 12(e) (motion for a more definite statement), or 12(f) (motion
to strike).26 None was made in this case.27 And, even had such a motion been made, and granted,
it is common practice under such circumstances to allow an original complaint to be amended and
the case to go forward, assuming the deficiency is one that may be cured. As with other original
jurisdiction cases, had this matter moved forward, the parties would have been afforded discovery
and motion practice under the Federal Rules of Civil Procedure, to flesh out and test the allegations
contained in Texas’s complaint.
Neither Attorney General Paxton nor First Assistant Webster alleged knowingly false facts
at what was an initial pleading stage, so they did not violate the Rules. “A filing or contention is
frivolous if it contains knowingly false statements of fact. It is not frivolous, however, merely
because the facts have not been first substantiated fully or because the lawyer expects to develop
vital evidence only by discovery. Neither is it frivolous even though the lawyer believes that the

26The Federal Rules of Civil Procedure generally apply to pleadings and motions filed in original
proceedings before the U.S. Supreme Court. S. Ct. Rule 17.2.
27 It also bears
noting that none of the twenty-four (24) States nor the three (3) territories that filed
briefs in opposition to the positions of Texas and the seventeen (17) other States sought sanctions
from the Supreme Court.
12
client’s position ultimately may not prevail.” Rule 3.01 cmt. 3. Thus, even if some facts alleged in
a pleading may not ultimately be substantiated, as is frequently or even typically the case, lawyers
do not violate the Rules merely by alleging these facts.
The Federal Rules of Civil Procedure are to much the same effect, and the commentary
thereon is instructive:
The rule [FED. R. CIV. P. 13] is not intended to chill an attorney’s enthusiasm or
creativity in pursuing factual or legal theories. The court is expected to avoid using the
wisdom of hindsight and should test the signer’s conduct by inquiring what was reasonable
to believe at the time the pleading, motion, or other paper was submitted. Thus, what
constitutes a reasonable inquiry may depend on such factors as how much time for
investigation was available to the signer;28 whether he had to rely on a client for
information as to the facts underlying the pleading, motion, or other paper; whether
the pleading, motion, or other paper was based on a plausible view of the law; or
whether he depended on forwarding counsel or another member of the bar.
The rule does not require a party or an attorney to disclose privileged
communications or work product in order to show that the signing of the pleading,
motion, or other paper is substantially justified.
FED. R. CIV. P. 13 (Notes of Advisory Committee on Rules—1983 Amendment) (emphasis added).
H. Importantly, the Complainants Are Not Clients of Attorney General Paxton or
First Assistant Webster.
The four complainants are not clients of Attorney General Paxton or First Assistant
Webster. This is an important distinction under the statute governing this proceeding. First, the
Government Code specifically prohibits the Bar from requiring Attorney General Paxton or First
Assistant Webster to explain their privileged decisions in this matter: “The state bar or a court
may not require an attorney against whom a disciplinary action has been brought to disclose
information protected by the attorney-client privilege if the client did not initiate the grievance that is
the subject of the action.” Tex. Gov’t Code § 81.072 (emphasis added). Accordingly, absent a
violation of the Disciplinary Rules that clearly appears from the face of the Pleadings—which has
not been shown—the Complaints should be dismissed again.
Secondly, and related to the partisanship concerns alluded to above, the State Bar should
neither encourage nor countenance what could be referred to as “disciplinary tourism.” Cf.

28 The Rule makes context critical when it comes to determining what constitutes a reasonable
inquiry under the circumstances. As Texas told the Court at the time, this was “a massive effort
in minimal time . . ..” Reply in Support of Motion for Preliminary Injunction at 9. “Texas had less
than four weeks to detect violations, find witnesses willing to testify—notwithstanding threats—
and develop evidence and build a case.” Id. As Justice Thomas has written, such pressures are
inherent: “postelection litigation is truncated by firm timelines. That is especially true for
Presidential elections . . .. Five to six weeks for judicial testing is difficult enough for
straightforward cases. For factually complex cases, compressing discovery, testimony, and appeals
into this timeline is virtually impossible.” Degraffenreid, 141 S. Ct. at 735 (Thomas, J., dissenting).
13
complaints relating to the alleged practice of “lawsuit tourism.”29 Put simply, the four
complainants who filed the Complaints are not the Respondents’ aggrieved clients. They have not
filed true “Grievances,” and they are not in any real sense victims of the Respondents’ alleged
violations of the Disciplinary Rules. Other than being members of the Texas State Bar, in fact, they
do not stand in any different stead from members of the public generally. It could be said, ironically
enough, that they lack standing to file a grievance in this matter. But nothing prevents them from
writing a letter to the editor or an editorial, publishing a blog post, or hosting a podcast outlining
their concerns in whatever level of detail they see fit.
State Bar disciplinary procedures should instead be reserved for policing the legal
profession and should not be abused to harass or intimidate attorneys with whose causes or clients
one happens to disagree. See, e.g., Texas Disciplinary Rules of Professional Conduct, Preamble,
cmt. 4 (“A lawyer should use the law’s procedures only for legitimate purposes and not to harass
or intimidate others.”). As the Preamble to the Disciplinary Rules provides: “the purpose of these
rules can be abused when they are invoked by opposing parties as procedural weapons. The fact
that a rule is a just basis for a lawyer’s self-assessment, or for sanctioning a lawyer under the
administration of a disciplinary authority, does not imply that an antagonist in a collateral
proceeding or transaction has standing to seek enforcement of the rule.” Id. at Preamble, cmt. 15.
How much truer that rings, Respondents submit, for a non-client non-party whose only
relationship to the case was as a member of the public and a supporter of the other side in a hotly-
disputed election contest.
III. The Complainants Have Not Raised Specific Violations and
Respondents Should Not Have to Bear the Burden of Proof
In the following section, Respondents attempt as best they can to address the
Complainants’ allegations. But in so doing, Respondents are hampered by the fact that none of the
Complaints cite any alleged Rules violations with specificity. In requiring a response to these
conclusory and amorphous Complaints, Respondents respectfully submit that the Board has
flipped the burden of proof in this proceeding and required Respondents to try to prove a negative:
that they did not violate any Disciplinary Rules. This they can do, and have done herein. But it
imposes an excessive and improper allocation of resources for Respondents to be required to
anticipate, articulate, and then rebut any conceivable concern that may be raised by the general,
non-specific, and inchoate assertions in these Complaints.
A. David W. Wellington Chew (Case No. 202006566) (against AG Ken Paxton)
Asked in the State Bar Grievance Form: “If you are not a party to this suit, what is your
connection with it?” Senior Chief Justice Chew replied: “Citizen.” See Grievance Form in Case
No. 202006566, at p. 5. But there is and should be no “taxpayer standing” in State Bar grievance
processes.

Chief Justice Chew’s complaint boils down to three conclusory sentences, to wit:

29See, e.g., https://theblogforbusinesslaw.com/has-the-u-s-supreme-court-put-an-end-to-lawsuit-

tourism-once-and-for-all-or-3-strikes-and-your-out-of-this-jurisdiction/; and
https://protecttheprotest.org/2020/02/10/bills-to-end-virginia-lawsuit-tourism/.
14
 This attorney is [sic] his capacity as Attorney General of Texas has violated his duty
and obligations as a Texas attorney, in particular, he has violated TDPRs:

Sec. 3.01: he has filed a [sic] utterly frivolous lawsuit; Sec. 8.02, he has made
numerous false statements in the petition filed; and, Sec. 3.09, he has violated his
responsibilities as a prosecutor. He has brought shame and disrespect to the the
[sic] State of Texas and the legal community of Texas.

Id. at p. 6.

First, and as noted above, to demand a response to such vague, non-specific, and
conclusory allegations effectively shifts the burden of proof to Respondents to prove a negative:
that they did not initiate a frivolous lawsuit. That is a violation of both due process and the
Disciplinary Rules of Procedure. The essence of due process is the requirement that a person in
jeopardy of serious loss (be given) notice of the case against him and opportunity to meet it.
Mathews v. Eldridge, 424 U.S. 319, 348 (1976) (internal quotation marks omitted).
But to address what little substance there may be of Justice Chew’s complaint, he specifies
violations of three (3) Disciplinary Rules: Rule 3.01, by filing a frivolous lawsuit; Rule 8.02, by
making “numerous false statements in the petition filed”; and Rule 3.09, by violating “his
responsibilities as a prosecutor.” Id. at p. 6.
Respondents did not violate Rule 3.01 because the lawsuit is not frivolous, as explained
above.
Rule 8.02 concerns statements about the qualifications of a judge and legal obligations of
lawyers who are candidates for office, and does not apply to this case.
Rule 3.09 concerns the responsibilities of criminal prosecutors, and likewise does not apply
to this case.
Justice Chew’s complaint should be dismissed.
B. Kevin Moran (Case No. 202006564) (against AG Ken Paxton)
Mr. Moran includes a mashup of newspaper clippings and public commentary by opposing
parties, politicians, and commentators to support his allegations – and importantly, no evidence or
cognizable legal argument. Mr. Moran’s grievance is more typical of the other Complaints than is
Justice Chew’s. But it is almost equally devoid of specificity. Asked to “[e]xplain in detail why you
think this attorney has done something improper or has failed to do something which should have
been done,” Mr. Moran stated the following:
Texas Attorney General Ken Paxton has filed a frivolous lawsuit vs. four swing
states in the 2020 national election. Paxton knows, and knew when he filed the
lawsuit, that it was totally unconstitutional. Still, he spent my tax dollars on the
filing, wasting the state’s money and his staff time and incurring the disdain of legal
experts across the nation. Paxton has purposely perverted the functions of his Texas

15
 office. He has misrepresented me and damaged me by wasting Texas state tax
dollars and other resources on this lawsuit.

Moran Grievance Form in Case No. 202006564 (“Moran Grievance”), at p. 6.

Mr. Moran further alleged that Attorney General Paxton “was hired to represent” him,
that Paxton is paid with Moran’s taxes, and that Moran is “a constituent and employer” of Paxton.
Moran Grievance, at 4, 5. Of course, Paxton and Moran do not in fact have an attorney-client
relationship and, importantly, Paxton was not “hired” but was elected to serve as the State of
Texas’s Attorney General, with the express constitutional and statutory authority to “prosecute
and defend all actions in which the state is interested before the supreme court and courts of
appeals.” TEX. GOV’T CODE §402.021. See also TEXAS CONST., Art. IV, § 22 (“The Attorney
General shall represent the State in all suits and pleas in the Supreme Court of the State in which
the State may be a party …”). Again, Respondents respectfully submit, taxpayer standing is not a
sound basis for the filing of Bar complaints. In fact, by statute, the Attorney only represents the
interests of the State of Texas, and is prohibited from providing legal advice other than to those
state actors permitted by the Texas Constitution or the Government Code. See Gov’t Code
402.045. He does not represent any citizen individually, nor is any citizen his client.
In his eight page “Supporting Documentation,” faxed to the State Bar a few days after he
filed his Grievance Form, Moran mostly quoted party opponents’ briefs or public comments, or
statements about the case made by politicians and other commentators, including the following:
• the Pennsylvania Attorney General’s response brief;
• public comments by the Wisconsin Attorney General and the Attorney
General for the District of Columbia;
• Statements of Senator Chris Murphy (D-CT), Congressman Jamie
Raskin (D-MD), and Congressman Adam Schiff (D-CA);
• Michael Abramowitz, the non-lawyer President of Freedom House and
former Washington Post White House correspondent; and
• Marc Elias, DNC legal adviser.
See generally Moran Supporting Documentation, at 2–6.
In the only portion of his grievance to cite the Rules, Mr. Moran excerpted certain Rules
and conclusorily alleged that Paxton (1) violated paragraph 4 of the Preamble to the Texas
Disciplinary Rules of Professional Conduct by filing the Pleadings “to harass or intimidate others,”
and that the lawsuit failed to “demonstrate respect for the legal system and for those who serve it,
including judges, other lawyers and public officials”; and (2) violated Rule 3.01 when he “filed the
lawsuit, knew that it had no merit and would be correctly called ‘frivolous’—or worse—when filed,
[then] he nonetheless filed the lawsuit. Then, he failed to withdraw the lawsuit when dozens of
legal and constitutional experts across the nation publicly said that it was frivolous on its face.”
Moran Supporting Documentation at 7–8.
First, Paragraph 4 of the Preamble is not a Rule; and in any event, as explained above,
Attorney General Paxton did not file the lawsuit “to harass or intimidate others.” We stand by our
conviction that the Pleadings do in fact “demonstrate respect for the legal system and for those

16
who serve it, including judges, other lawyers and public officials.” A plain and fair reading of the
Pleadings reveals just that. Nothing in this or any of the other Complaints shows otherwise.
Second, Attorney General Paxton did not violate Rule 3.01. As demonstrated above, the
Pleadings are not frivolous, and there is no factual basis for Mr. Moran’s unsupported speculation
that General Paxton himself believed otherwise.
Mr. Moran’s Complaint should be dismissed.30
C. Neil Kay Cohen (Case No. 202101148) (against AG Ken Paxton)
Like the prior two complaints, Mr. Cohen also lists his connection to the case as “citizen
of Texas. Disgusted by his [Paxton’s] behavior.” Cohen Grievance Form at p. 5. His attached
complaint is very long (at 51 pages) and difficult to follow. But the gist of it seems to be that
Attorney General Paxton “committed grave violations of the Texas Disciplinary Rules of
Professional Conduct (the Rules) in filing a baseless lawsuit.” Cohen Grievance Form Attachment
(“Cohen Attachment”) at 10. Mr. Cohen derides the Pleadings as “beyond frivolous,” likens
them—on multiple occasions—to something “straight out of Alice in Wonderland,” and twice
quotes liberal commentator Linda Greenhouse saying about the case: “It’s as if someone filed a
case asking the court to exercise its original jurisdiction and declare the moon to be made of green
cheese.” Id. at pp. 2, 17. Respondents submit these comments are merely hyperbolic.
Like Mr. Moran’s Complaint, Mr. Cohen also liberally cuts-and-pastes extensive quotes
from political and media commentators—some attributed, others not—and intersperses
throughout long excerpts from the briefs of the Defendant States and of those amici aligned with
them. See especially id. at pp. 23, 31-42. He even relies upon a Politifact rating of an expert affidavit
submitted with Texas’s appendix. Id. at pp. 25, 48.
Mr. Cohen also includes arguments and quoted passages from pleadings, briefs, and judicial
decisions in other 2020 election contest cases that were not filed in the Supreme Court and did not
sound in that Court’s original jurisdiction or in any way involve questions of State standing
doctrine. But his efforts to re-litigate the underlying facts of these cases—and of Texas’s lawsuit—
are moot: the Court never reached the merits and, accordingly, Texas was never given an
opportunity to conduct discovery in an attempt to prove up its Bill of Complaint.
In the last few pages of his complaint, Mr. Cohen cites several Disciplinary Rules. Rule
1.06(b)(2) addresses loyalty to a client, and Mr. Cohen says General Paxton violated it because
“press coverage suggested that the suit was for Paxton’s personal benefit” (id. at p. 45), and then
goes on to cite politicians, commentators, and unnamed sources in editorials and news articles
musing about General Paxton’s motivations. Id. at pp. 45-48. This is not evidence but sheer

30 According to press reports, Mr. Moran is the President of the Galveston Island Democrats and
a friend of former Galveston Mayor Joe Jaworski, who has formally declared his candidacy for the
Democratic Party nomination for Texas Attorney General in the upcoming 2022 election cycle.
See, e.g., https://thehill.com/homenews/state-watch/557601-texas-bar-association-investigating-
states-attorney-general-report; https://www.kcbd.com/2021/06/09/ap-exclusive-state-bar-
investigating-texas-attorney-general/. While a partisan such as Mr. Moran is free to file a bar
complaint, his motivation and bias in doing so should be considered by the State Bar, just like the
Bar does in other highly emotional and contested cases.
17
speculation; and, furthermore, it fails to explain what motives drove 17 other States and State
Attorneys General to side with Texas (not to mention the supportive arguments urged by Arizona
and Ohio in their amicus briefs).
Mr. Cohen also accuses General Paxton of violating Rule 3.03 and its requirement of candor
toward the tribunal, claiming—again, without any evidence of his subjective state of mind—that
General Paxton knowingly presented false or fraudulent facts to the Court. Cohen’s reliance upon
Politifact and opponents’ briefing is, again, beside the point: Texas never obtained discovery to
prove its case and its facts were never put to the test by summary judgment or trial. But, as noted
above, infra at p. 3–5, the main gist of its case was based on evidence well-established in the public
record: non-legislative actors in these four (4) States unquestionably enacted changes to the
election rules in violation of the Electors Clause of the U.S. Constitution. Respondents did not
knowingly present false information to the Court, and did not violate Rule 3.03.
Mr. Cohen also alleges a violation of Rule 8.04, accusing General Paxton of having
“committed fraud upon the Supreme Court by bringing the suit in the name of the State of Texas
while acting as a straw man for Trump . . .. One result of the fraud is that the Supreme Court had
to deliberate whether the suit qualified for original jurisdiction whereas a suit brought in Trump’s
name could have been immediately dismissed.” Id. at p. 50. This is nonsense. Two Supreme Court
Justices—Thomas and Alito—agreed with Texas and dissented from the majority’s refusal to
accept the case in its original jurisdiction. And, as previously noted, 17 other States and States’
Attorneys General agreed with Texas—and both Arizona and Ohio noted in their amicus briefs
their belief that jurisdiction was mandatory in this matter. There was no deceit here.
Lastly, Mr. Cohen spends considerable time arguing about events that transpired after the
Court ruled and the lawsuit had concluded. None of this relates to any court filing or legal work,
and Respondents decline to address it. Respondents hope, as well, that the State Bar is mindful of
the disturbing precedent that would be set by holding attorneys accountable for the out-of-court
actions of unrelated third parties taken several weeks after the Supreme Court ruled.
Mr. Cohen’s Complaint should be dismissed.
D. Brynne VanHettinga (Case No. 202101679) (against Brent Webster, only)
Dr. VanHettinga is an inactive member of the Texas Bar, who appears to no longer practice
as an attorney.31 Her grievance solely names Brent Webster as the attorney about whom she is
complaining. In response to the question about her connection to the case, VanHettinga responded
that she is a “Citizen concerned about fascism & illegal overthrow of democracy.” VanHettinga
Grievance at 5.
Dr. VanHettinga alleges that First Assistant Webster violated Rule 3.01 by filing a frivolous
lawsuit, and violated Rule 3.03 by knowingly making a false statement of material fact or law to a
tribunal. VanHettinga Grievance, attached materials at 1. She similarly complains that First
Assistant Webster violated Rule 8.04(a)(3) by “engag[ing] in conduct involving dishonesty, fraud,
deceit or misrepresentation,” Id. at 2, but in either instance she fails to state with any specificity
what it is in the Pleadings that she contends to be dishonest, fraudulent, deceitful or

31 See https://thegreatjobsdeception.com/about-the-author/.
18
misrepresentative. As explained at length above, First Assistant Webster did not violate Rule 3.01
or 3.03 because the lawsuit was not frivolous and did not contain knowingly false statements.32
Like the above-referenced Complaints, Dr. VanHettinga also fails to specify what she finds
frivolous or factually unsupported in the Pleadings. Interestingly, she quotes TEX. R. CIV. P. 13 to
the effect that an attorney’s signature constitutes a representation that the pleading, etc., is not
fictitious, groundless, or brought in bad faith or for an improper purpose, subject to contempt or
other sanctions as punishment. Id. at 1-2. But she neglects to quote another important part of the
rule: “Courts shall presume that pleadings, motions, and other papers are filed in good faith. No
sanctions under this rule may be imposed except for good cause, the particulars of which must be stated
in the sanction order.” TEX. R. CIV. P. 13 (emphasis added).
Similarly, the applicable federal counterpart to this rule provides that an attorney’s
signature certifies “that to the best of the person’s knowledge, information, and belief, formed
after an inquiry reasonable under the circumstances . . . (3) the factual contentions have evidentiary
support or, if specifically so identified, will likely have evidentiary support after a reasonable
opportunity for further investigation or discovery . . .. FED. R. CIV. P. 11(b)(3) (emphasis added). As
previously noted, the Court did not take the case, so no discovery ensued, and the merits of Texas’s
factual allegations were not tested in court. As noted above, the main gist of those factual
allegations was not disputed. And while the Complaints have asserted that some of the cited
evidence was controversial or even hotly-disputed, none have attempted to show that it lacked all
evidentiary support at the pleadings stage, or that it assuredly would have failed to do so “after a
reasonable opportunity for further investigation or discovery” in this original jurisdiction
proceeding.33
As previously noted, the lawsuit was not frivolous, its factual allegations were well-
supported, and filing the Pleadings was not an act of “dishonesty, fraud, deceit or
misrepresentation.”
Dr. VanHettinga’s Complaint against First Assistant Webster should be dismissed.

32 Dr. VanHettinga’s complaint also refers to “Texas Disciplinary Rule of Conduct 4.01.5” –
apparently intending Comment 5 to Rule 4.01, which she correctly quotes as saying “[a] lawyer
should never knowingly assist a client in the commission of a criminal act or a fraudulent act.” Id.
at 4. But here, too, she does not specify what crime or fraud was being committed, or what evidence
supports an inference that Mr. Webster subjectively knew his “client” was committing it.
33 Dr. Van Hettinga also quotes extensively from written decisions by two judges: one from Nevada

(Judge James Russell) and one from Pennsylvania (Judge Matthew Brann). Id. at 3-4. Of course,
Nevada’s election was not at issue in the Texas v. Pennsylvania case, and Judge Brann’s case—like
other contemporaneous election contests referred to in the Complaints generally—involved
different parties, different legal theories, mostly different facts, did not address original jurisdiction
or State standing, and was decided based on a very different procedural posture. This fact
VanHettinga grudgingly acknowledges, noting that despite some overlap in evidence, “State of
Texas v. Commonwealth of Pennsylvania et al, involves different parties and raises somewhat
different issues than these prior cases . . ..” Id. at 3.
19
 IV. The State Bar’s Review of This Matter Violates
the Separation of Powers Clause
Under Texas law and the Texas Constitution, Attorney General Ken Paxton and First
Assistant Brent Webster have the authority to file cases on behalf of the State of Texas that invoke
the original jurisdiction of the United States Supreme Court.34 When they do so, they are cloaked
in the power of the State. For the State Bar to investigate, let alone reprimand, those decisions is
tantamount to ceding to the State Bar the Attorney General’s statutory and constitutional power.
With full respect for the State Bar and its core functions, this is an unconstitutional usurpation of
power that far exceeds its remit.
Therefore, the statute allowing the State Bar’s Chief Disciplinary Counsel (CDC), a part
of the Judicial Branch, to investigate grievances, find professional misconduct, and impose
sanctions is unconstitutional as applied35 to this investigation of the legally authorized decisions of
the Office of Attorney General because it violates the Separation of Powers Clause.36 “The Texas
Separation of Powers provision is violated: (1) when one branch of government assumes or is
delegated a power ‘more properly attached’ to another branch, or (2) when one branch unduly
interferes with another branch so that the other branch cannot effectively exercise its
constitutionally assigned powers.” Ex parte Perry, 483 S.W.3d 884, 894–95 (Tex. Crim. App.
2016).
This investigation violates the Separation of Powers Clause of the Texas Constitution
because the Attorney General cannot effectively exercise his constitutionally assigned powers if
the judicial branch requires him to justify such exercise in the guise of regulating the professional
conduct of the attorneys who work for him. As applied to this investigation of the four Complaints,
the statutes allowing this investigation are just as unconstitutional as a hypothetical statute
purporting to allow the Attorney General to investigate court decisions or votes by legislators that
the Attorney General believes violates Rules adopted by the Attorney General. And it is just as
unconstitutional as would be a hypothetical criminal investigation of a lawyer-governor’s veto, or
a hypothetical State Bar investigation of a lawyer-legislator’s decision to leave the State and collect
pay from the State’s coffers during a legislative session, in the guise of merely investigating the
lawyer-governor’s professional conduct.
The regulation of the professional conduct of attorneys does not extend to the regulation
of the decisions of the Attorney General, his Office, or any other agency that happens to be led by
a licensed attorney, or any public official who may happen to be a licensed attorney. The

34See TEX. GOV’T CODE §402.021. See also TEXAS CONST., Art. IV, § 22 (“The Attorney General
shall represent the State in all suits and pleas in the Supreme Court of the State in which the State
may be a party”); TEX. GOV’T CODE § 402.001(a) (“If the attorney general is absent or unable to
act, the attorney general’s first office assistant shall perform the duties of the attorney general that
are prescribed by law.”).
35 In an as-applied challenge, “the plaintiff argues that a statute, even though generally
constitutional, operates unconstitutionally as to him or her because of the plaintiff's particular
circumstances.” Tex. Workers’ Comp. Comm’n v. Garcia, 893 S.W.2d 504, 518 n.16 (Tex. 1995).
36 TEX. GOV’T CODE § 81.075.
20
Complaints, notably, all concern the decisions of the Attorney General and the conduct of
attorneys acting under his authority and supervision. They do not allege violation of the Rules by
individual attorneys independent of the Attorney General’s exercise of his constitutional and
statutory authority.
Additionally, whether the Attorney General should have brought this suit is self-evidently
a political question, not an ethical one.37 “To protect the separation of powers essential to the
structure and function of American governments, the political question doctrine teaches that the
Judicial Branch will abstain from matters committed by constitution and law to the Executive and
Legislative Branches.” Am. K-9 Detection Services, LLC v. Freeman, 556 S.W.3d 246, 249 (Tex.
2018). The Texas Supreme Court has thus applied the United States Supreme Court’s political
question jurisprudence in identifying issues beyond the scope of Texas courts’ power to adjudicate.
Specifically, the Court has examined whether there is “a textually demonstrable constitutional
commitment of the issue to a coordinate political department; or a lack of judicially discoverable
and manageable standards for resolving it.” Id. at 252–53.
This holding should extend to investigations by the judicial branch of the Attorney
General’s decision to file this lawsuit because that decision is committed by constitution and law
to that executive branch office. The Bar does not and cannot regulate politics, and should not allow
itself to be weaponized for use in political disputes. It must stay out of this textbook political
dispute.
Allowing this investigation to continue would effectively impair the Attorney General’s
independent constitutional and statutory authority, impermissibly transferring a core Executive
responsibility to the Bar, which would thereby sit in judgment of the Attorney General’s motives
behind each lawsuit—even though those motives are privileged in this investigation and can only
be separated out from the inherent political considerations with great difficulty. The separation of
powers does not tolerate such a transfer.
V. Conclusion
Attorney General Paxton and First Assistant Webster did not violate the Texas
Disciplinary Rules of Professional Conduct. The lawsuit in Texas v. Pennsylvania was not frivolous
and addressed important yet unresolved issues. Filing the lawsuit was an exercise of the legitimate
constitutional and statutory authority of the Attorney General. The Office of Chief Disciplinary
Counsel may not investigate such exercises of authority under the guise of investigating allegations
of Disciplinary Rules violations. Finally, the political question doctrine also applies and bars this
investigation. Whether the lawsuit should have been filed is ultimately not an ethical question, but
is inseparable from its political context. The Bar cannot regulate politics, and should not try to do
so. For these reasons, the undersigned request that the Complaints be dismissed, and that no
further action be taken by the State Bar against Attorney General Paxton and First Assistant
Webster related to their involvement in the Texas v. Pennsylvania lawsuit, whether with respect to
previous or future filed grievances against them.

37And one, it bears repeating, in which at least seventeen (17) other State Attorneys General
concurred.
21
Dated: July 15, 2021.
Respectfully submitted,
/s/ Grant Dorfman
GRANT DORFMAN
State Bar No. 00783976
Deputy First Assistant Attorney General

MURTAZA F. SUTARWALLA
Deputy Attorney General for Legal Counsel

HENRY DE LA GARZA
Chief Employment Counsel and Ethics Advisor

AUSTIN KINGHORN
General Counsel

RALPH MOLINA
Assistant AG, General Litigation Division

OFFICE OF THE ATTORNEY GENERAL OF TEXAS

P. O. Box 12548, Capitol Station
Austin, Texas 78711-2548
(512) 463-2100 • fax (512) 475-2994
grant.dorfman@oag.texas.gov

22