So this is Trump’s final Hail Mary: an assault on mail-in voting by invoking Bush v. Gore. But this would bring down the entire election in PA. I also see no limiting principle to prevent such a precedent from also invalidating mail-in voting systems in other states.
Another problem with this radical reading of Bush v. Gore is that it uses the idea of equality to dismantle a system of voting created in advance by the state, rather than to stop a state official from changing recount standards after people have voted.
In any event, the theory of unequal or unfair treatment falls apart when you think about it. They argue that mail-in ballots are “devaluing in-person votes,” but it does no such thing. Each person had an equal opportunity formally to decide how to cast one vote.
Another thought: If the design or counting of mail-in ballots violated equality, wouldn’t it also do so for every other race using the same system?
Many were rightly alarmed that 4 members of SCOTUS (before ACB’s ascendance) were open to invalidating the PA Sup. Ct’s rather modest extension of the deadline for mail-in ballots to arrive. But embracing Trump’s wholesale assault on mail-in voting would truly be astonishing.
It seems to me a federal district judge can and should dispose of any design-challenges on their face given the extraordinary nature of the legal theory and the intrusive quality of any relief that would be required. Here they want an injunction to stop certification.
Strewn throughout the complaint are allegations concerning the handling of certain ballots that were defective. The problem is that these allegations, even if true, wouldn’t rise to the level of a systematic effort to deprive voters of the franchise.
I’m not going to go through every allegation but they regurgitate many things they’ve alleged in other cases or in the news.
The right answer, I think, is a quick TRO hearing, a district judge giving them an audience and refusing to grant a TRO to stop the certification process. The Third Circuit should affirm, and SCOTUS deny cert.
I was a law clerk when Al Sharpton ran for mayor of NYC. He brought an EPC challenge to the primary results. My judge gave him a hearing, denied the TRO, and things wrapped up fairly quickly after that. And we thought intervening there would be far-reaching!
Granted that was in 1997, so in the pre-Bush v. Gore world. But as awful as that decision was, this Trump lawsuit based on this theory would not only overturn an election; it would also destroy states’ rights.
I don’t want to give any more airtime to these allegations. Trump and his allies will use the lawsuit as a vehicle to drum up more discontent, which is unnerving. My belief is that federal judges will understand what it would mean to throw the results into real doubt—and won’t.
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On this Veteran’s Day, many are worried about a coup by the president. Let’s be watchful but trust the patriotic and law-abiding citizens among us to do their jobs as professionals. There are certainly alarming things about Trump’s post-election rhetoric and that of his allies.
/2 Repeatedly claiming the election was rigged is disgraceful and anti-democratic. It sows suspicion and division. It raises outsized hopes that the will of the people will somehow be overthrown. Such language undermines our institutions.
/3 But a coup can’t happen without a lot of orchestration and acquiescence. There has been more norm-breaking but not yet any lawbreaking. Trust election officials—Democrats, Republicans, and volunteers—to finish counting the votes and certify the election results in every state.
4th Cir denies QI where 5 officers shot a man 22 times as he lay motionless: “Although we recognize that our police officers are often asked to make split-second decisions, we expect them to do so with respect for the dignity and worth of black lives.” bit.ly/3cWyDk4
/2 The man was apparently homeless and walking, but had committed no offense. The cops initiated the encounter, demanding that he provide ID and asking if he had a weapon. He did have a knife on him and so he asked a clarifying question. Things went sideways from there.
/3 Before the 5 cops shot him 22 times, the facts suggest “Jones had been tased four times, hit in the brachial plexus, kicked, and placed in a choke hold, at which point gurgling can be heard in the video. A jury could reasonably infer that Jones was struggling to breathe.”
SCOTUS has been no friend to victims of police choke holds in their search for accountability. In 1976, Adolph Lyons, a 24-yr-old black man, was stopped by the LAPD during a traffic stop. Officers put him in a chokehold until he blacked out. He woke up spitting blood and gasping.
/2 In 1983, SCOTUS ruled 5-4 decision against Lyons, insulating the LAPD from an injunction, finding it unbelievable that African Americans faced a higher risk of such dangerous encounters with the police. Justice White was joined by Burger, Powell, Rehnquist, & O'Connor.
/3 The majority found it "surely no more than speculation to assert ... that Lyons himself will again be involved in one of those unfortunate instances."
Raise your hand if you knew that in May 1937 the New York Times did a gauzy profile of Hitler, painting him as a “Bohemian” with an “artistic temperament”? 🙋🏼♂️
/2 Here he is lauded as “a great improvisator” who loves to talk with “many kinds of people”
/3 “Where Hitler Dreams” and eats his honey and cheese. He’s practically an “unaffected private gentleman.”