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.
The federal cases were the ones with standing issues. The federal courts are supposed to have a limited role in state elections. That role is primarily in protecting the right to vote, and as many judges noted this year, these post-election cases weren't about the right to vote.
They were, instead, challenges based on the premise that "my vote should count, that other person's shouldn't." Finding a lack of individual voter standing for a challenge to thousands of other voters is very much in line with existing law.
The Electors Clause cases made new standing law, but that's a relatively novel theory that's never been the basis for such aggressive litigation.

The theory Trump was advancing was that any deviation from state election law could be litigated in federal courts.
I can understand why having that as an option would be something welcomed by some on the left, but I'm conservative enough (at least when it comes to federal jurisprudence) to think that would be a bad thing.
I don't think the federal courts should be ruling de novo on whether (eg) it violates Pennsylvania law to make observers stand 10 feet from tables instead of 6 feet, or on whether it violates Georgia law to make an election clerk get a second opinion on a signature question.
Meanwhile, there was considerable pre-election litigation (on many of the same questions) where there weren't issues because the right parties brought cases in the right court at the right time.
So I'm pretty much OK with the way the courts - especially federal - handled the post-election litigation this cycle.

More from Mike Dunford

THREAD:
Good afternoon, followers of frivolous election litigation. There's a last-minute entry in the competition for dumbest pre-inauguration lawsuit - a totally loony effort to apparently leave the entire USA without a government.

We'll start with the complaint in a minute.

But first, I want to give you a quick explanation for why I'm going to keep talking about these cases even after the inauguration.

They're part of an ongoing effort - one that's not well-coordinated but is widespread - to discredit our fundamental system of government.

It's a direct descendent, in more ways than one, of birtherism. And here's the thing about birtherism. It might have been a joke to a lot of people, but it was extremely pernicious. It obviously validated the racist "not good enough to be President" crowd. But that wasn't all.

Don't get me wrong, that was bad enough. Validating racism helped put the kind of shitbird who would tweet this from an official government account into power. But it didn't stop


(Also, if you agree with Pompeo about multiculturalism - the legendary melting pot - not being what this country is all about, you need to stop following me now. And maybe go somewhere and think about your life choices and what made you such a tool.)
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.

More from Government

This is a good piece on fissures within the GOP but I think it mischaracterizes the Trump presidency as “populist” & repeats a story about how conservatives & the GOP expelled the far-right in the mid-1960s that is actually far more complicated. /1

I don’t think the sharp opposition between “hard-edge populism” & “conservative orthodoxy” holds. Many of the Trump administration’s achievements were boilerplate conservatism. Its own website trumpets things like “massive deregulation,” tax cuts, etc. /2

https://t.co/N97v85Bb79


The claim that Buckley and “key GOP politicians banded together to marginalize anti-Communist extremism and conspiracy-mongering” of the JBS has been widely repeated lately but the history is more complicated. /3


This tweet by @ThePlumLineGS citing a paper by @sam_rosenfeld and @daschloz on the "porous" boundary between conservatives, the GOP and the far-right is relevant in this context.


This is a separate point but I find it interesting that Gaetz, like Roy Moore did In his failed Senate campaign, disses McConnell. What are their actual policy differences? MM supported taking health care away from millions, a tax cut for the rich, conservative judges, etc. /5

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