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Broadly speaking, the post-election litigation can be divided into two buckets: 1) the Kraken batshit fraud claims, which sometimes put on their party dresses and pretend to be legit challenges to signature matching technology; and 2) the suits that allege state officials unconstitutionally usurped the power of state legislatures to govern electoral procedures. The Kraken suits get oxygen from the wingnut media hyping their nonsense claims 24-7. But the more "reasonable" cases are predicated on a pair of pre-election decisions where Justices Alito, Thomas, Kavanaugh and Gorsuch signaled they might be willing to start invalidating state court interpretations of election law because state legislatures are the elections' REAL DADDY.

Call it the Bush v. Gore theory — even though that particular ticket was supposed to be good for one ride only, and even though it's axiomatic that state courts are the final arbiters of state law. The Pennsylvania and North Carolina cases mapped out a narrow path for SCOTUS to jump in and invalidate a handful of late-arriving mail-in ballots, which courts had ordered states to count. If Trump could just get the election close enough that a couple thousand votes might make the difference, then the conservative justices would ...

Well, we don't have to contemplate that particular hellscape, because he didn't. He lost, and it's very clear the Supreme Court is not interested in lighting the country on fire to overthrow the will of the voters. No, not even if Trump tacitly threatens violence in the streets, as he did in his motion demanding the justices expedite the case, promising that "the intense national and worldwide attention on the 2020 Presidential election only foreshadows the disruption that may well follow if the uncertainty and unfairness shrouding this election are allowed to persist." Subtle!

This weekend, the sea vomited the Kraken suits on SCOTUS's doorstep, along with the first of what is probably a string of Trump campaign Hail Mary passes. We'll get to the Krakhead LULZ in a separate post, but let's deal with the marginally more cogent Trump cases first.

Six weeks and 60 courtroom losses after the election, the Trump campaign has turned its focus to Pennsylvania, where it is challenging a trio of Pennsylvania Supreme Court decisions blessing the state's election procedures. The cases date from October 23, November 17, and November 23, and at this point in this nightmare from which we can never wake up, you should be shouting "Laches! Laches!" Because the law doesn't allow you to sleep on your rights until after the Electoral College has cast its ballots and then bust into the Supreme Court and demand it overturn the election.

Case One!

The first case involves a unanimous Pennsylvania Supreme Court ruling there's no statutory requirement to match signatures on absentee ballots. In fact, a federal court said the same thing October 10. So why didn't the the Trump campaign appeal the earlier federal court decision? And why are they just getting around to appealing the October 23 state opinion now? It's a mystery!

Three levels of state courts and a federal judge agreed there's no signature match requirement in state law, but the Trump campaign has a good explanation for this, and it is Pennsylvania's "partisan-elected Supreme Court." The campaign fails to explain how rock-ribbed Pennsylvania Republicans who obviously voted for Trump could have installed a bunch of pinkos on the bench. The case also ignores the fact that US District Judge Nicholas Ranjan, a Trump appointee, agreed with those dirty liberal jurists. But well done, Team Trump, for opening with a broadside on the judiciary. The justices love that shit!

Case Two!

The second no-good, very bad Pennsylvania Supreme Court ruling, at least according to Trump's "Elite Strike Force" of lawyers, found no statutory requirement that election observers be close enough to sneeze Covid droplets down the necks of election workers tabulating the votes. Remember when Rudy Giuliani was Rudying all over the federal court, and right in the middle of all his yammering about Republican canvass observers using binoculars to keep an eye on those wily Philadelphia counters, the Pennsylvania state court dropped a decision saying there was no statutory right to stand on top of poll workers? LOL, that day was CRAZY. Anyway, this is that case.

"While this language contemplates an opportunity to broadly observe the mechanics of the canvassing process, we note that these provisions do not set a minimum distance between authorized representatives and canvassing activities occurring while they 'remain in the room.'," the court wrote. "The General Assembly, had it so desired, could have easily established such parameters; however, it did not."

Translation: Pennsylvania's gerrymandered legislature should have said "within droplet range" if that's what they wanted. And they didn't, so piss off.

Case Three!

The third case involves the requirement that the voter's name and address be handwritten on the outer envelope of a mail-in ballot under her signature and date. Of course, this information is already printed on the envelope with the bar code identifying the voter, and there is no argument that a voter who signs her name but forgets her address is likely to be committing fraud. This is why the Pennsylvania court found that the law was "directory, not mandatory" and, citing longstanding state precedent, refused to toss out ballots, because "technical violations of the Election Code do not warrant the wholesale disenfranchisement of thousands of Pennsylvania voters."

Note also that only a few thousand ballots fall into the "no address" category, not enough to flip the election even if all of them were for Joe Biden. In fact, there's no allegation that the number of votes at issue here would be enough to overturn Biden's 88,000-vote margin. Instead the campaign hints darkly that mail-in ballots are dangerous, while conceding that the legislature passed a law allowing for "no excuse" absentee voting. You know, the same legislature whose sacred right to set election rules this appeal is supposed to vindicate.

Then they accuse the Pennsylvania Supreme Court of violating Article II of the Constitution by "changing the law during the election."

As described above, non-legislative officials, oftentimes at the instigation of partisan third parties, ignored or significantly altered and thereby violated state election law, including, most troublingly, laws enacted to minimize the risk of fraud in mail voting and thereby protect the integrity of the election process.

They so very much want to make the Kraken fraud argument. But, like, without presenting any evidence of actual fraud.

Throw in some further attacks on those state judges, and you're golden.

The decisions of the Pennsylvania Supreme Court, an elected body, also raised serious concerns whether these were partisan attempts to assist the Democratic candidate whose campaign strategy of utilizing mail ballots was well publicized, in comparison to President's Trump's well-known strategy to encourage in-person voting.

Plato? Aristotle? Socrates? All those other courts that said this shit was moot because Pennsylvania's electors already cast their votes? Morons! The date that happened doesn't even matter! And neither do any other dates!

None of the other election dates, such as the so-called December 8, 2020 "safe harbor" date established by 3 U.S.C. § 5 or even the January 6, 2021 date for the joint session of Congress established by 3 U.S.C. § 15, are constitutionally required. Indeed, if this Court vacated a State's appointment of presidential electors has having been illegally certified because of illegal and unconstitutional conduct by election officials, those electoral votes would not be counted in the joint session of Congress on January 6, 2021.

Okay, sure, you bet.

Let us pause to take in the breathtaking dishonesty on display here. The entire premise of this lawsuit is that Pennsylvania judges unconstitutionally usurped the exclusive power of the state legislature, because Article II says, "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." While it is true that those specific safe harbor and election certification dates are not "constitutionally required," Congress's power to set those dates is derived from this passage: "The Congress may determine the Time of choosing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States."

Can you guess where you might find this language?


And the remedy for this, according to the Trump campaign, is for the Supreme Court to usurp Congress's constitutional rights and tell Congress which electoral slate to certify. Because the only way to remedy an unconstitutional usurpation of legislative power is with another unconstitutional usurpation of legislative power!

princess bride GIFGiphy

But wait, there's more!

Even the swearing in of the next President on January 20, 2021, will not moot this case because review could outlast the selection of the next President under "the 'capable of repetition, yet evading review' doctrine," which applies "in the context of election cases … when there are 'as applied' challenges as well as in the more typical case involving only facial attacks." [...] Mootness is therefore not, and will not become, an issue.

OMG, it will never end!

Just kidding, it's already over. This case is hot garbage, and it isn't going to get a hearing. It's too late, the issues have all been decided in lower courts, the Supreme Court doesn't have the power to order Congress to consider an alternate state of electors or change the date of certification, and there's no evidence that overturning all three of the state court decisions plus the one about the late mail-in ballots would put Trump over the top.

So, don't get upset, even if that useless fucker files five more suits challenging the results in Arizona, Wisconsin, Michigan, Georgia, and Nevada. Which he probably will. This is kabuki theater to make Trump feel like he's doing something, since his advisers won't let him declare martial law. We made it through the past four years, and we'll make it 30 more days.

Just breathe.

[Trump v. BoockvarPetition for Writ of Certiorari]

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Liz Dye

Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.


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