On SCOTUS (from a lawyer)
https://thedonald.win/p/11R4JGEHkU/on-scotus-from-a-lawyer/
posted 9 hours ago by TheNixonTapes +7535 / -10
Things are not over. But let me put SCOTUS into perspective.
Yes, GA, PA, MI, and WI, all violated the Constitution. All serious people concur with that assessment. But standing, objectively, was going to be difficult to assert. Texas did make a pretty creative argument, to be sure. Standing was sort of 50-50 given there is literally no precedent for this type of suit. We must commend those who stood with us, even against the odds. Everyone else, fuck 'em.
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Apart from the Texas suit, you must keep in mind all election-related lawsuits can be distinguished by the the stage during the election period they are brought, the parties bringing them, and the court in which they are brought.
There are three defined stages to this fight: (A) pre-election litigation; (B) post-election, pre-certification litigation; and (C) post-election, post-certification litigation.
The parties relevant for our purposes are (1) POTUS in his personal capacity/Trump campaign and (2) all other third parties (e.g., state-level GOP, private citizens, such as Sidney P and L. Wood and their plaintiffs, etc.).
The courts are obviously distinguished between State (S) and Federal (F).
[I will occasionally combine these alphanumeric references to discuss particular litigation strategies. For example, a reference to an (A-1-F) lawsuit would reference a pre-election lawsuit (A) brought by POTUS (1) in Federal court (F).]
Most of the attention-grabbing litigation has been post-election, pre-certification lawsuits brought by third parties in Federal court (B-2-F). From a strategy standpoint, these suits puzzled me.
First, Federal court was always less desirable of a venue than State court, because Federal courts almost never intervene in post-election matters. (The only exception to that general rule is an appeal from a state court of last resort to SCOTUS, such as Bush v. Gore.)
Second, these (B-2-F) lawsuits sought to enjoin certification of the state election results. I am unaware of any court ever granting this type of relief. The reason no such relief has ever been granted is because the laws of almost every state require certification of results before one can file an election contest in court. (Some states also require certification as a condition precedent to requesting a recount and/or for an automatic recount to occur.)
While POTUS did attempt to stop PA and MI certifications, several factors diminished the feasibility of those suits as time progressed, a subject which I do not discuss here.
The key lawsuits to watch have always been the election contests.
First, an election contest was how Bush v. Gore got to SCOTUS, which demonstrates how these types of lawsuits present a more plausible path to SCOTUS review.
Second, standing is almost never a problem, because most state statutes only permit the candidates to bring election contests. The candidate always meets the three key requirements of standing (injury in fact, causation, and redressability).
Third, election contests must be brought in state court. Another issue with Federal court is that many of the arguments in the post-election lawsuits have focused on violations of state law. Federal courts do not interpret state law, cannot be called upon to enforce state law, and do not remedy violations of state law. The only time a Federal court examines a state law is when the court is examining whether the state law violates the Federal constitution.
Fourth, and this is the good part, POTUS has at least four active election contests that have been filed sort of under the radar:
-There is one in Wisconsin (10 EV), which the Wisconsin supreme court is set to hear tomorrow.
-There is one in Georgia (16 EV), which has a better chance of success than Sidney P or Lin Wood's suits, precisely because POTUS is a party to this suit, suing in his personal capacity.
-There is one in Nevada (6 EV), which the NV supreme court rejected, making it now prime for appeal to the SCOTUS.
-There is another one in Arizona (11 EV), which the AZ supreme court rejected, and which AZ GOP Chairwoman Kelli Ward said they were appealing to SCOTUS.
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I would be lying to you all if I said this was not an uphill battle. It always has been. And I am always cognizant of us not turning into the "here's how Bernie can still win" type of people from 2016. But objectively speaking, it is still not over.
And I will say…
WE DESERVE OUR DAY IN COURT GODDAMMIT!