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Steve Vladeck Profile picture
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12 Nov, 5 tweets, 2 min read
This is ... different:

The Trump campaign has filed a wide-ranging lawsuit challenging the counting of votes in Wayne County (Detroit) not just in a federal district court in Michigan, but in the U.S. Court of Federal Claims in D.C. — which has *no jurisdiction* in such cases:
Here's the complaint. I'm not kidding: They literally filed the W.D. Mich. complaint in a different court that only hears monetary claims against the federal government:

justsecurity.org/wp-content/upl…
To be clear, I don't think this is malicious; it seems pretty clear it's just a filing error. But it says a lot to me about where we are that we're seeing these kinds of errors.
(This is also a good moment to flag the tireless and excellent work of @kpolantz, who brought this to my attention.)
Update: Judge Kaplan has transferred the case to the Western District of Michigan (where the same complaint had already been filed).

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More from @steve_vladeck

Steve Vladeck Profile picture
9 Nov
There’s currently a Senate-confirmed Deputy Secretary of Defense — David Norquist. Under 10 U.S.C. § 132(b), *he* is supposed to become Acting Secretary in the event of a vacancy.

Unless Trump fired him, too. Image
To be clear, *if* the Federal Vacancies Reform Act allows the President to appoint someone else as Acting Secretary notwithstanding § 132(b), Miller is a valid choice (because of his Senate confirmation). But it's not at all obvious that the FVRA *does* override the DoD statute.
The last time this came up, Trump named as Acting Secretary Patrick Shanahan (who was already serving as the Deputy Secretary), which avoided the issue:

Read 5 tweets
Steve Vladeck Profile picture
28 Oct
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.
Read 5 tweets
Steve Vladeck Profile picture
27 Oct
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.
Read 10 tweets
Steve Vladeck Profile picture
11 Aug
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.
Here’s the DOJ data:

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:

Read 4 tweets
Steve Vladeck Profile picture
6 Jul
#SCOTUS's last *two* opinions for the day, handed down simultaneously, are in the "faithless elector" cases:

Short version: "A State may enforce an elector’s pledge to support his party’s nominee—and the state voters’ choice—for President."

supremecourt.gov/opinions/19pdf…
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.
Read 4 tweets
Steve Vladeck Profile picture
22 Jun
1. The new defense of Barr's conduct over the weekend is that he was just trying "to find a job for [Jay] Clayton."

There are at least three problems with this effort to whitewash what Barr did and said—all of which suggest that he was, indeed, acting in bad faith.

A #thread:
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.
Read 6 tweets

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