Brad Heath Profile picture
22 Nov, 11 tweets, 2 min read
It is certainly true that losing a case gets you one step closer to appellate review. However /
If you had instead won the case, you would have already won and wouldn't need to appeal, which is the usual strategy in litigation.
Also, if your goal is to tee up a case for appellate review, you don't want to lose like this.

You don't want to have to take up a case that you lost in part because it was incompetently litigated. And you don't want to take up a case you lost for Every Possible Reason.
Why, you ask? Because if you lost on standing and on the merits and maybe some other things, the court only needs to disagree with you on one of them and you're done.
Also, conservative judges will have lots of reasons to hate this case. Ruling for Trump would require adopting a really expansive rule for standing, which they don't like. And they couldn't rule for him without opening the door to a whole lot of other election litigation.
Trump's theory would make every election inequity into a federal case. Was a voting line in Atlanta so long some people couldn't vote? Under this theory, voters there could sue other counties in the state that had shorter lines. That's basically Trump's argument in PA.
And even if you get the case to the Supreme Court, then what? Can you finally unburden on the court all the evidence of the Giant Election Rigging Fraud you failed to raise in the district court?

No. In general, issues not raised below are waived.
And then, even if you get the case to the Supreme Court and somehow win on each and every issue -- standing, merits, etc. -- your reward is a remand back to the district court, where you can try to prove the claims you actually made in your complaint.
And if somehow your complaint failed to allege the massive fraud that you claimed TV? (And if your amended complaint also failed to allege this and you successfully appeal the denial of leave to file it?) Then you still don't have a way to raise the massive fraud in court.
This is a victory in the sense that spilling food on yourself helps your strategy of having to do laundry sooner.
This concludes my talk on why lawyers generally prefer to just win their cases.

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More from @bradheath

23 Nov
President Trump's lawyers have filed their Third Circuit brief. They're asking the court to reverse the district court's decision that they could not amend their complaint a second time. Image
Trump's lawyers want to make clear that they're not "seeking to disenfranchise 6.8 million voters." They're seeking to disenfranchise some subset of 1.5 million voters who cast absentee ballots in some counties. Image
(Though their lawsuit literally asked that the court prevent the state from certifying the results of the election.)
Read 11 tweets
23 Nov
President Trump's lawyers just told the Third Cir. they plan to seek an emergency restraining order to block Pennsylvania from certifying its election results. Image
This is something Trump could have done when it filed its appeal. Or yesterday. Or .....
Trump's legal team says that because of the " the extreme time pressures involved in drafting and filing all of the motions and briefs required," it should get to add 1,300 words to its brief. Image
Read 5 tweets
23 Nov
Meanwhile, John Solomon has been looking through court cases and claims to have found "a mountain of evidence has been amassed in private lawsuits alleging there was, in fact, significant and widespread voting misconduct."

There isn't. This is profoundly misleading. Image
Here's the link if you're curious,…, though I caution you that reading it will leave you *less* informed.

Solomon claims to have found "a dozen compelling allegations of voting irregularities."

But no.
Item 1 is a Detroit poll worker who claimed thousands of ballots had been backdated or falsified. She did claim that, but Solomon leaves out quite a lot. Image
Read 8 tweets
23 Nov
So the big election-rigging case President Trump wants to tee up for the Supreme Court is actually whether his lawyers should have gotten permission to fix a filing they screwed up.
Best case this strategy means Trump gets to go back to the district court and lose on standing a second time?
President Trump's appeal of a judge's brutal rejection of his efforts to overturn Pennsylvania's election -- the one his lawyers said would get them to the Supreme Court -- is *only* about whether the judge should have given them leave to fix a complaint his lawyers screwed up. Image
Read 22 tweets
22 Nov
For those wondering about the consequences of President Trump's efforts to sow distrust in voting and elections, here's a pretty significant one: It will help states sustain new restrictions on voting if they choose to implement them.
That's so because states don't need to prove they're combating fraud to justify voting restrictions. They don't really need to prove there's fraud at all. It's often enough to show they're addressing the public's fear of fraud and trying to create confidence in elections.
And the president's tactics -- and the utterly delusional conspiracies spreading online and on some of his favored TV channels -- have certainly worked. A third of voters think there was "a lot" of fraud in this election. Nearly all of Trump's supporters do. (From @YouGov.) Image
Read 4 tweets
21 Nov
The judge observes that the Trump campaign is "trying to mix-and-match claims to bypass contrary precedent." Image
The court rules that both the Trump campaign and its two attempted-voter plaintiffs lack standing to bring the case. Image
The voter-plaintiffs lack standing because although they were denied the right to vote (because their ballots were invalid), they sued other counties and the state that did not invalidate their votes, not the counties that did. Image
Read 19 tweets

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