Texas - WTF is this even - a very short reassurance thread:
1: The Texas "lawusit" against four other "battleground" states in the United States Supreme Court is legally stupid.* It is so legally stupid that I was reluctant to believe that even Ken Paxton would file it.
For lawyers, this is a signal that this is a performance of politics by "litigation" and not a serious effort.
Lawyers - at least competent ones - will zero in on the alleged injury and the evidence that the injury was caused by the defendant states.
Courts care about how the person bringing the complaint was allegedly harmed by the person being sued. If there's not a harm you can sue over and/or you can't show how the person you are suing caused that harm, You Have No Case.
The motion for leave to file doesn't seem to allege an actual injury that courts address, and doesn't really allege how the state in question caused that injury.
I am not worried in the least about the case.
https://t.co/QRIBlW6qf6
Goddamn it, Texas, I don't have time for this today.
— Akiva Cohen (@AkivaMCohen) December 8, 2020
Fine. Fine. A brief thread. (Yesterday I said I'd do a brief thread on the Michigan decision and finished an hour and a half later. Can't let this be that, today).
I'll let them take it. I looked at the injury section and then deleted the download.
https://t.co/ipbla8ose4
I *do* want to pick it apart!
— Actually malicious, no actual malice (@apark2453) December 8, 2020
And... Wow. This is art.
154 pages.
One entry on the table of contents: "Motion for leave... page 1".
1/ https://t.co/PgNRwnpxKY pic.twitter.com/b89qpCFRp5
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Election Litigation Update: DC - the "let's sue the Electoral College" case.
This is a bit surprising, given that as of last time I checked nobody had been served and no appearance had been entered. I suspect it's an effort to make sure the case isn't "pending" on the 6th.
And, sure enough, still no proof of service on ANY defendant, still no appearance from defense counsel. And this is denying the motion for preliminary injunction but does NOT dismiss the case - which is potentially ominous for plaintiff's counsel.
This isn't a "happy judge" kind of first paragraph. Not even a little bit. Nope.
Y'all, this isn't even directed within a few hundred miles of my direction and I sill just instinctively checked to make sure that there's room for me to hide under my desk if I have to - this is a very not happy, very federal, very judge tone.
Also - the judge just outright said there's a bunch of reasons for dismissal. And not in "might be" terms. In definite fact ones. But the case isn't dismissed yet.
If I was plaintiffs counsel, I'd definitely be clearing under my desk right now, and possibly also my underwear.
This is a bit surprising, given that as of last time I checked nobody had been served and no appearance had been entered. I suspect it's an effort to make sure the case isn't "pending" on the 6th.
Link: https://t.co/oOJZD1F4x2
— Brad Heath (@bradheath) January 4, 2021
And, sure enough, still no proof of service on ANY defendant, still no appearance from defense counsel. And this is denying the motion for preliminary injunction but does NOT dismiss the case - which is potentially ominous for plaintiff's counsel.
This isn't a "happy judge" kind of first paragraph. Not even a little bit. Nope.
Y'all, this isn't even directed within a few hundred miles of my direction and I sill just instinctively checked to make sure that there's room for me to hide under my desk if I have to - this is a very not happy, very federal, very judge tone.
Also - the judge just outright said there's a bunch of reasons for dismissal. And not in "might be" terms. In definite fact ones. But the case isn't dismissed yet.
If I was plaintiffs counsel, I'd definitely be clearing under my desk right now, and possibly also my underwear.
This is an excellent question, and it's something that I've thought about some over the last couple of months.
Honestly, I think the answer is that the rationales for these rulings are not likely to unreasonably harm meritorious progressive OR conservative challenges.
The first thing to keep in mind is that, by design, challenges to the outcomes of elections are supposed to be heard by state courts, through the process set out in state law.
That happened this year, and the majority of those challenges were heard on the merits.
The couple of cases where laches determined the outcome of state election challenges were ones where it was pretty clear that the challenges were brought in bad faith - where ballots cast in good faith in reliance on laws that had been in force for some time were challenged.
The PA challenge to Act 77 is one example. The challengers, some of whom had voted for passage of the bill, didn't make use of the initial, direct-to-PA-SCt challenge built into the law or sue pre-election; they waited until post-election.
The WI case is another. That one had a challenge to ballots cast using a form that had been in use for a literal decade.
Those are cases where laches is clear - particularly the prejudice element.
Honestly, I think the answer is that the rationales for these rulings are not likely to unreasonably harm meritorious progressive OR conservative challenges.
Any merit to the notion that the rationales for some of these rulings will harm progressive challenges in future elections?
— Andrew Broering (@AndrewBroering) January 3, 2021
One says laches, another moot, another standing, sometimes with almost the same type of plaintiff.
The first thing to keep in mind is that, by design, challenges to the outcomes of elections are supposed to be heard by state courts, through the process set out in state law.
That happened this year, and the majority of those challenges were heard on the merits.
The couple of cases where laches determined the outcome of state election challenges were ones where it was pretty clear that the challenges were brought in bad faith - where ballots cast in good faith in reliance on laws that had been in force for some time were challenged.
The PA challenge to Act 77 is one example. The challengers, some of whom had voted for passage of the bill, didn't make use of the initial, direct-to-PA-SCt challenge built into the law or sue pre-election; they waited until post-election.
The WI case is another. That one had a challenge to ballots cast using a form that had been in use for a literal decade.
Those are cases where laches is clear - particularly the prejudice element.
I went over the dismissal on my stream, but a few thoughts on where things are at:
1: The Notice of Appeal doesn't shock me; I figured Louie would be this dumb.
2: As was the case with the case at the District Court, it doesn't really matter how vigorously Pence defends this.
3: The lack of standing is so spectacularly, glaringly obvious that it doesn't really matter whether Pence raised certain arguments; they will get noticed by the court.
4: That's because federal courts have an independent duty to ensure they have jurisdiction.
5: Standing is a jurisdictional requirement; no standing means no case.
6: The rules for standing are clear and nothing in the opinion dismissing the case was the least bit controversial in any universe except the alternate one inhabited by Louie and the Arizonan cosplayers.
7: "But it's the 5th Circuit" will be raised both by Trumpistians and those who are exceptionally nervous. There is exactly as much reason to be concerned about the 5th as there was the trial court: ie none at all.
So - my expectations:
Given the timeline, I suspect that Louie will be granted an expedited appeal and will lose on an expedited basis. I also expect that he will appeal to SCOTUS and the appeal there will not be expedited.
1: The Notice of Appeal doesn't shock me; I figured Louie would be this dumb.
2: As was the case with the case at the District Court, it doesn't really matter how vigorously Pence defends this.
And the appeal has been noticed. pic.twitter.com/o4g4ES1wrU
— Kyle Cheney (@kyledcheney) January 2, 2021
3: The lack of standing is so spectacularly, glaringly obvious that it doesn't really matter whether Pence raised certain arguments; they will get noticed by the court.
4: That's because federal courts have an independent duty to ensure they have jurisdiction.
5: Standing is a jurisdictional requirement; no standing means no case.
6: The rules for standing are clear and nothing in the opinion dismissing the case was the least bit controversial in any universe except the alternate one inhabited by Louie and the Arizonan cosplayers.
7: "But it's the 5th Circuit" will be raised both by Trumpistians and those who are exceptionally nervous. There is exactly as much reason to be concerned about the 5th as there was the trial court: ie none at all.
So - my expectations:
Given the timeline, I suspect that Louie will be granted an expedited appeal and will lose on an expedited basis. I also expect that he will appeal to SCOTUS and the appeal there will not be expedited.
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So it's now October 10, 2018 and....Rod Rosenstein is STILL not fired.
He's STILL in charge of the Mueller investigation.
He's STILL refusing to hand over the McCabe memos.
He's STILL holding up the declassification of the #SpyGate documents & their release to the public.
I love a good cover story.......
The guy had a face-to-face with El Grande Trumpo himself on Air Force One just 2 days ago. Inside just about the most secure SCIF in the world.
And Trump came out of AF1 and gave ol' Rod a big thumbs up!
And so we're right back to 'that dirty rat Rosenstein!' 2 days later.
At this point it's clear some members of Congress are either in on this and helping the cover story or they haven't got a clue and are out in the cold.
Note the conflicting stories about 'Rosenstein cancelled meeting with Congress on Oct 11!"
First, rumors surfaced of a scheduled meeting on Oct. 11 between Rosenstein & members of Congress, and Rosenstein just cancelled it.
He's STILL in charge of the Mueller investigation.
He's STILL refusing to hand over the McCabe memos.
He's STILL holding up the declassification of the #SpyGate documents & their release to the public.
I love a good cover story.......
The guy had a face-to-face with El Grande Trumpo himself on Air Force One just 2 days ago. Inside just about the most secure SCIF in the world.
And Trump came out of AF1 and gave ol' Rod a big thumbs up!
And so we're right back to 'that dirty rat Rosenstein!' 2 days later.
At this point it's clear some members of Congress are either in on this and helping the cover story or they haven't got a clue and are out in the cold.
Note the conflicting stories about 'Rosenstein cancelled meeting with Congress on Oct 11!"
First, rumors surfaced of a scheduled meeting on Oct. 11 between Rosenstein & members of Congress, and Rosenstein just cancelled it.
Rep. Andy Biggs and Rep. Matt Gaetz say DAG Rod Rosenstein cancelled an Oct. 11 appearance before the judiciary and oversight committees. They are now calling for a subpoena. pic.twitter.com/TknVHKjXtd
— Ivan Pentchoukov \U0001f1fa\U0001f1f8 (@IvanPentchoukov) October 10, 2018
