BC JUDGE
Saved by @Alex1Powell

So, quick rundown of the latest #Squidigation decision: It's very thorough; 36 pages of Judge Parker explaining that Powell and her merry band of fuckups lose for every conceivable reason

 First: 11th Amendment Immunity. Basically, states (and their officials) have sovereign immunity; you can't sue them in Federal Court except to the extent that they agree to be sued there. Quick thumbnail of the doctrine here
There are only 3 exceptions to this: 1) Congress says "you can sue your state for this"; 2) the state agrees to be sued; 3) Younger, a case that said "you can sue your state if you are just seeking an order saying 'stop violating my rights'"
In other words, if the state passes a law that says "no talking politics in public" you can sue for an order saying "that's unconstitutional and can't be enforced" but not for damages from having your 1A rights violated in the past
I'm sure you can see where this is going: Exceptions 1 and 2 don't apply; Congress didn't say "no sovereign immunity" when it passed 42 USC 1983 (the civil rights statute the plaintiffs sued under) and Michigan hasn't waived it. That leave Younger as the only remaining option
Shit, not Younger. Ex parte Young. (Younger is a different issue). Apologies
Anyway, Young doesn't apply, for two reasons: 1) it NEVER applies to state law claims (so the Plaintiffs' claims that Michigan violated its own election code are barred); 2) The Plaintiffs are asking for backwards looking relief ("decertify, etc") not an injunction against future
violations of their rights. So that exception isn't available, either.

Bottom line: The Plaintiffs have no ability to sue any of these defendants at all, so they lose.
Next, Judge Parker moves on to mootness: Even if they *could* sue these defendants, the court couldn't give the plaintiffs any relief, so the case is moot
Here's what the Plaintiffs asked for
The problem with all that? Before they bothered to sue, the results had already been certified, the certification passed to the Archivists, and the time set in Michigan law for requesting special elections (based on voting machine errors) or recounts had expired
For all of you nervous folks out there - and I know there are a lot of you - pay special attention to the footnote: There is no longer any legal avenue left for challenging Michigan's election results.

It's over.
The opinion then runs through why all of this means the case is moot; not gonna take you paragraph by paragraph but it quotes both the 11th Circuit's decision in Wood ("we cannot turn back the clock and create a world in which the 2020 election results are not certified") and
Wecht's concurrence in the PA Supreme Court case: "What are you idiots smoking, there's no legal mechanism for ignoring the vote, morons"

(I paraphrase)
So, our intrepid band of adventurers sued people who cannot be sued for relief that can't be granted. (Exactly the same as if they had sued Daenerys Targaryen and asked the Court for an order directing that they be awarded a dragon egg). But even if the court could ignore that...
They managed to file their lawsuits too late
By now, you're all familiar with the concept of laches, right? That if you sit on your hands and let the "bad thing" play out, when you could have stopped it earlier, and the delay harms people, the Court's not going to pay attention when you suddenly wake up and say "stop em!"
And oh boy did they ever file them late. Every aspect of their claim was late, especially its core; if you are going to sue about alleged software problems you claim have been discussed for a decade, do it *before* the fucking election
And, of COURSE the delay harmed the voters and defendants; we've now had an election and blown by Michigan's statutory deadlines for election challenges. Done.
But the Court isn't done yet. Even if they hadn't sued Santa for a real live baby Yoda, and even if they hadn't waited for after Christmas to file the suit, the Court *still* wouldn't hear it.

Why? Abstention
Abstention (I'll simplify) is a doctrine that basically says "look, Federal Courts, some things are better left to state courts. Where that's true, Federal Courts should dismiss the cases instead of hearing them.
There are a number of different situations where that comes into play, and the various abstention doctrines are known by the names of the cases that made them famous. Colorado River abstention - federal courts shouldn't take up issues already being litigated in a state court case
Burford abstention - federal courts can choose not to hear challenges to state administrative agency orders

Pullman abstention - don't assess the constitutionality of ambiguous state statutes until state courts have had an opportunity to interpret those statutes
Younger abstention (which is why Younger was on my mind earlier) - you can't hear a civil rights claim where the plaintiff is actively being prosecuted for the underlying conduct
Here, Colorado River applies, because there were state court cases challenging the election results. Detroit argued the Court should also abstain under Burford and Pullman, but Judge Parker was like "look, this is the fourth separate ground they lose on, one abstention is enough"

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Let's talk about this North Dakota attempt to legislate around Section 230 and create a civil right of action for users censored by social media sites. CC @mmasnick

Forget, for a moment, that this law, if it passed would immediately be deemed void as preempted by Section 230 (Federal law is supreme over state law where they conflict, and this would create an express conflict). This bill is a really good example of why this stuff is hard

Here's the key provision of the bill. The various highlighting on these versions shows areas we'll touch on


First of all, let's look at the last of those images. There's no question that this would target conduct immune under federal law - and, in fact, if 230 were repealed nobody could ever be liable under this law (since it only reaches immune conduct). So it's incredibly stupid.


But again, put that aside. Let's look at the substance.

First of all, who gets to decide whether content fits into these highlighted categories? Do they actually think that the government will get to decide what counts as "otherwise objectionable"?
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In the cold light of morning, I'm still completely amazed by the legal belly flop that @ThomasMoreSoc filed in the DC District Court. It's the legal equivalent of watching the butt fumble, live

EVERYTHING you could possibly get wrong in a complaint, they managed


Start with the plaintiffs. The ONLY claims in the lawsuit are that the Constitution gives state legislatures the right to set the manner of elections, which they have allegedly (we'll get to this insanity) failed to do.

There's oodles of caselaw saying "since that's a right of the state legislature, only state legislatures, as a body, can bring such a claim"

Are the plaintiffs state legislatures?

https://t.co/KJGEvm8Owp


OK, what about the Defendants? They've sued Defendants from, IIRC, five states (GA, PA, WI, MI, AZ) based on claims that the State Legislatures there didn't pass election rules that the plaintiffs insist the Constitution requires (I promise, we'll get there).
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@AkivaMCohen
OK, #Squidigation fans, I think we need to talk about the new Wisconsin suit Donald Trump filed - personally - in Federal Court last night. The suit is (as usual) meritless. But it's meritless in new and disturbing ways. This thread will be


Not, I hope, Seth Abramson long. But will see.

I apologize in advance to my wife, who would very much prefer I be billing time (today's a light day, though) and to my assistant, to whom I owe some administrative stuff this will likely keep me from 😃

First, some background. Trump's suit essentially tries to Federalize the Wisconsin Supreme Court complaint his campaign filed, which we discussed here.


If you haven't already, go read that thread. I'm not going to be re-doing the same analysis, and I'm not going to be cross-linking to that discussion as we go. (Sorry, I like you guys, and I see this as public service, but there are limits)

Also, @5DollarFeminist has a good stand-alone thread analyzing the new Federal complaint - it's worth reading as well, though some of the analysis will overlap.
TRUMP
Akiva Cohen
Akiva Cohen
@AkivaMCohen
Somebody asked me about this idiotic "PenceCard 2: Electric Boogaloo" article, and people, just stop worrying about this stuff.

The conspiracy wing of the GOP is going to keep pumping out these "Ten Neat Tricks to steal an election [number 8 will shock you!]" articles straight through the inauguration. (Yes - don't expect this to stop after the electoral votes are counted)

None of it is real. None of it has any legal basis. It's fantasy written by fantasists for coping MAGA-ites who find reality just too painful to accept. Ignore it.

This particular flavor of wishcasting was written by Ted Noel. Unless there are two "Ted Noel"s writing nonsense for the American Thinker, Noel is a doctor, not a lawyer or scholar, who nevertheless writes about legal issues

This actually makes me feel a bit better, because the thought that a *lawyer* could think that Pence had "plenary power" to discard state election certificates for any reason he chose is - even after watching Wood, Powell, Kaardal, and the rest - somehow too hard to contemplate
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Akiva Cohen
Akiva Cohen
@AkivaMCohen
OK, let's start talking about the House's 80 page brief on impeachment. It really is an incredibly well-done piece of work. There are some things I'd do differently and some pieces I didn't love, but overall, it's very very good.

Again - this thread will happen in fits and starts. I'm swamped at work and this will come in 10-15 minute chunks as I take a break

Let's start by taking a look at the table of contents. After a 4-page intro (that's relatively long, don't love it), the brief spends a solid 30 pages walking through the facts underlying the impeachment - and, the subheadings tell us, tying in Trump's general refusal to accept


the election results with everything that followed. This is a strong rhetorical approach, but it comes with dangers: the President not only had a legal right to contest the election results, but the GOP Senators pretty much all backed that right, strongly.

It's going to be important to thread a needle of saying "this set the stage for what came after" without putting yourself in a place where you're trying to convince the Senate that the challenges themselves were impeachable. That won't fly
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He was also with his g/f at the time (Dominique Tota, left of Tarrio), and that's definitely a twitter account folks will want to block/report because he posts on it.


He's been plenty active at the pro-Covid/anti-mask/ReOpen protests in Lansing MI, seen here with Jerry Wayne and an effigy of Gretchen Whitmer, who his militia friends tried to kidnap and publicly execute.


Outside of the Proud Boys, his solo "career" with Oak Nation features the same misogyny, classism and gateway to far-right domestic terrorism the Proud Boys themselves feature. Here's him peddling oxychlorinque and bragging about harassing service workers.
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