1. An attempt to clear up confusing public discourse about counting ballots, in five tweets.
When Trump talks about no "counting" after Election Day, he could mean one of two things:
A) No tabulating *at all* after 11/3; or
B) No counting of ballots *received* after 11/3.
2. Claim A is just insane. As I've explained in detail in another thread, *no* state finishes counting all of its ballots *on* Election Day, and every state but one waits at least a week before fully certifying their results. Federal law is clear on this:
3. And so, when Trump says that courts are siding with him about no counting after Election Day, he's just flat-out wrong.
Claim B is trickier because rules for when absentee/mail-in ballots must be *received* necessarily vary by state, as there's no uniform federal standard.
4. Much of the litigation you're reading about involves courts deciding whether (and to what extent) different states' laws allow for late-arriving mail-in ballots to be counted. There almost certainly *isn't* one uniform answer, hence all of these (outwardly disparate) rulings.
5. But however *those* cases are resolved, what's clear is that the counting of votes received *by* 11/3 can and will go past that date; the result won't be official until enough states certify that one candidate has 270 EVs; and there's *nothing* nefarious about *any* of that.
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1. In response to the President's claim that we "must have final total" election results *on* Election Day, here's a #thread on how and why presidential elections *actually* work under state and federal law — and why, in fact, we've *never* had final results *on* Election Day.
2. Let's start at the beginning. A U.S. presidential election is actually 51 *different* elections (50 states + DC), in which each jurisdiction votes for presidential *electors.* It's the *electors* who vote for President — and they don't meet until *41 days* after the election:
3. Why 41 days? To give states time to finish counting. Although Election Day is fixed by law, Congress has allowed states to set their own rules about when they count ballots — including whether and to what extent to allow mail-in ballots, and by when those ballots must arrive.
A helpful and accessible @imillhiser explainer about #SCOTUS’s “shadow docket.”
I’ll just add that, compared to my data Ian cites, we’re now up to *34* emergency applications from the Trump DOJ (13 this Term), and *11* 5-4 shadow docket rulings since October. It’s getting worse.
And here’s the list of the 11 (public) 5-4 “shadow docket” rulings this Term, with the caveat that shadow docket rulings sometimes have hidden dissenters:
There are two opinions because the Colorado case raises the same issue as the one decided in the Washington case.
The Court was unanimous as to the result, but Justice Thomas concurred only in the judgment (in an opinion joined in part by Justice Gorsuch).
No more opinions are expected today, so we still await the Trump tax cases, the ACA contraceptive mandate, the ministerial exception to Title VII, and the Oklahoma/Native American jurisdictional dispute.
We'll should hear later today when the Court will next hand down decisions.
2. First, the Clayton story makes no sense because the Senate still uses blue slips for U.S. Attorneys.
There is a 0.0% chance that both Sen. Schumer and Sen. Gillibrand would've signed off on confirming someone to that job with zero prosecutorial experience—and Barr knows that.
3. Second, Barr's Friday night statement—in his own words—is affirmatively misleading. Leaving aside Carpenito (more on him in a moment), the statement claimed that Berman was "stepping down," even though Barr (1) knew he wasn't; and (2) lacked the power to fire him directly.
Berman is the Acting U.S. Attorney by dint of a *judicial* appointment.
There’s a pretty good argument that, per the plain language of 28 U.S.C. § 546(d), he gets to keep serving in that post until the *vacancy* is filled (through Senate confirmation of a permanent successor).
Of course, the Trump DOJ may argue that § 546(d) is unconstitutional insofar as it prevents the President from removing Berman, but that’s complicated here by Berman being an *Acting* U,S. Attorney—over whose appointment and removal Congress can arguably exercise *more* control.
As @marty_lederman points out, there’s a 1979 OLC opinion concluding that the President—but *not* the Attorney General—can fire a U.S. Attorney appointed under § 546(d):
On Saturday, I did a #thread on the President's power to use the military for domestic law enforcement—incl. the relationship b/w the Insurrection Act and the Posse Comitatus Act:
In 2006, Congress tried to update the IA. Here's a #thread on how it went:
1. As I've noted before, the IA is the name for a series of old statutes enacted between 1792–1871. The language that emerged over this process is remarkably vague and open-ended, and leaves the critical factual determinations entirely to the President:
2. More to the point, other than when Title 10 was codified in 1956, the language of the IA hadn't been updated or otherwise amended *since* 1871. After Hurricane Katrina, Congress changed that—rewriting the statute to be much clearer about when it could be used, and for what: