The problem here is that Trump lost on a motion to dismiss, not on the merits.

So what goes up on appeal is whether the case should have been dismissed.

If the Third Circuit also rules FOR Trump the ruling is that the lower court was incorrect in dismissing the case . . .

. . . which means the case goes back to the lower court for a hearing.

If the Third Circuit rules AGAINST Trump, and the case goes to the Supreme Court, the issue is whether the case should have been dismissed.

If SCOTUS rules FOR Trump. . .
. . . it means the lower court must grant a trial.

So Trump gets a hearing. Even if things go very quickly, this will take weeks. At the end, if Trump wins, he gets a hearing, which also takes time.

So Trump's email was malarkey.
This won't work. The only thing that can prevent a state from certifying the election is a court order preventing them from certifying.

In other words, the court must issue an order stopping the certification.

The other problem for Trump is that the court ruled against them on several grounds: Standing, no cause of action, etc. etc. In other words, the judge gave multiple (good) reasons for dismissing the case.

To "win" Team Trump has to overcome each reason . . .
. . . they have to argue that they have standing (they don't) that they had a valid cause of action (they didn't) etc. etc.

One thing people don't understand about appeals is that you don't get a new trial on appeal. In fact, you don't get a trial on appeal . . .
The appellate court looks at what the lower court did to see if they applied the correct law.

The district court found the case so weak they wouldn't even allow an amended complaint.
They have to persuade the appellate court that the lower court shouldn't have dismissed the case.

The appellate court will look at the record from the lower court: docs filed, transcripts of hearings. They'll hear arguments on whether the judge erred.
The issue will be: Should the lower court have allowed the case to proceed, or was the lower court correct in throwing the whole thing out and refusing to allow an amended complaint.

The lawyers point to the record and argue about whether the court's ruling was justified.

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More from @Teri_Kanefield

23 Nov
I see 2 possibilities after Jan:

💠The Trump-FOX-GOP remains united and we have deeper divisions between those who embrace truth and those who embrace lies

💠When the GOP tries to move on and looks to a 2024 candidate not named Trump, the Trumps attack them and the GOP splits
You see, the question for the GOP is who controls the voters. A few decades ago, the GOP made the mistake of outsourcing voter mobilization. They teamed up with FOX and the NRA, who got the voters to the polls. So FOX and the NRA control the voters, which gives them power. . .
. . . over the voters. (That insight on GOP voter mobilization is from Yale political scientist @Jacob_S_Hacker and Berkeley political scientist Paul Pierson.

This gives FOX power over candidates, which as forced candidates to adopt more extreme positions.

Right now. . . Image
Read 11 tweets
22 Nov
See my thread from last night.

Technically what Judge Brann did was grant the defendant's motion to dismiss.

A motion to dismiss is what a defendant brings at the start of a lawsuit to get rid of totally frivolous claims so the court doesn't have to waste time.

It's usually hard to win on a motion to dismiss because courts prefer to see the evidence and decide on the merits.

To win on a motion to dismiss, the lawsuit as filed has to be so fatally defective so that there is no point having a trial or hearing.

For example, suppose I sue you on the claim that you are ugly and therefore you owe me $1 million dollars.

There are a few problems with that.

The main problem, in legal terms, is that I have failed to state a cause of action.

Read 8 tweets
21 Nov
They're filing these lawsuits believing the courts will hand the election to Trump.

It's deeply cynical, springing from the belief that anyone who wins does so by cheating and rule of law is an illusion.

The GOP attitude: "Trump is a liar and a cheat, but he's OUR liar."
To see it as destroying rule of law, you have to believe rule of law exists and is possible.

We see it destroying rule of law and taking away our votes.

They (on the other hand) see widespread voting as "corruption," usurping white power.
Anti-democratic forces have been with us since the beginning. They were pro-slavery. They were pro-Jim Crow. They believed in women in the home.

They read the Constitution as establishing these things because they read the Constitution as intended in 1789.
Read 4 tweets
19 Nov
The thing to notice from Tweets like these (@marcorubio and @LindseyGrahamSC) is that it's now a badge of honor for members of the Trump-Fox-GOP to be criticized by the media and the left.

Similarly, convictions are a badge of honor: Flynn and others are given a hero's welcome.
Not at all. It looks to me like the ultimate defiance. They actually rejoice in their defiance.

They consider themselves heroes for bucking rules and norms and laws.

Convictions and criticism (for them) enhance their status as victims.
They're breaking laws they don't believe should exist.

Their hatred of the "deep state" is hatred of the regulatory agencies that hamper the personal liberty of white men.

They see convictions (and criticism) as a "corrupt" society out to get the true champions of America.
Read 7 tweets
19 Nov
Hungarian scholar Balint Magyar offers a theory that explains why the US is holding out against the same tactics that caused other countries to collapse into autocracy.

His theory also explains why comparisons across nations doesn't always work.
While writing about post-communists mafia states, he talked about the “big bang” theory:

He says that the “conditions preceding the democratic big bang have a decisive role in the formation of the system.”

Here's how I understand the theory (to use Russia as an example)

At the time of the Russian Big Bang (early 1990s, when a Democracy struggled to be born) the Communist Party had a monopoly on power and resources.

Read 7 tweets
18 Nov
Another Republican attempt to prevent ballots from being counted loses in court.

(The ballots were received on time, but the voter failed to write the date. No allegations of fraud. Just a simple mistake. GOP wanted the votes not to count)

Nope. Count them.
In Sept. Trump announced his strategy for keeping power: Get rid of the ballots.

He's been trying hard.

It isn't so easy.

He's not just losing because of an incompetent legal team. He's losing because he has no legal argument.…
I actually meant no cause of action, but there is also no evidence.
The common thread behind all Trump's legal challenges is: There is fraud, therefore, throw out all the ballots.

Even if there was fraud, this is not the remedy.

Also, there is no fraud.
Read 6 tweets

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