Jay Kuo Profile picture
22 Nov, 25 tweets, 4 min read
I received a number of inquiries concerning whether the PA federal court case that was dismissed with prejudice yesterday can or will find its way up to SCOTUS on appeal. This is a long thread, but worth reading in its entirety if you want to fully understand... /1
...what’s going on and why I and other legal minds feel no anxiety over an appeal.

First, let me emphasize that ANY federal court case at the trial court level can be appealed. That will happen here. First, Trump will go to the Third Circuit (where he will lose) and then.../2
... he will appeal it quickly to SCOTUS. For the reasons I will walk through below, he will also lose there.

I want to further emphasize that I share concerns that SCOTUS is partial to the GOP and a Trump administration, in much the way the court was partial... /3
...to Bush in 2000 and delivered a 5-4 opinion that stopped the recount. But this is a very different situation than 2000, and I do not think any court, no matter how biased, will be able to contort itself into delivering Pennsylvania.../4
... for Trump or otherwise invalidating its election.

To understand why, we need to look at the facts of this case and what they are actually alleging.

Two plaintiffs from Lancaster and Fayette, Pennsylvania (two heavily red counties) allege that their mail-in votes.../5
... were canceled and, unlike other voters in other counties, they were not given an opportunity to “cure” the invalidation. The brief history of this is important. In 2019 the GOP-controlled legislature in PA passed a law providing.../6
... for no-excuse-needed mail-in voting for all voters in the state. The rules for how voters had to complete ballots were stricter than most states. There was an infamous “secrecy” envelope, inside of which voters had to put the ballot envelope. People complained.../7
...that this would wind up with a lot of rejected ballots as the process was not very intuitive or normal.

The new mail-in ballot law did not address what rights voters have to any notice that their ballot was defective, or to “cure” a defectively submitted ballot.../8
... after it was rejected by a county elections office (these are called “notice and cure” provisions). The PA Supreme Court in another case in October held that counties were not REQUIRED to adopt any notice and cure provisions.../9
... , but did not address whether any of these provisions were forbidden. On Nov 2, the Secretary of State, Kathy Boockvar, sent an email to the counties encouraging them to provide notice to any voters who submitted defective ballots.../10
... so that they could be cured. Some counties did so, including Philly County. Others, including Lancaster and Fayette, did not.

Plaintiffs sued Boockvar and the State Board of Elections, but curiously only sued counties OTHER than their own, including Allegheny,.../11
... Centre, Chester, Delaware, Montgomery, Northampton, and Philadelphia (all heavily Biden counties).

Okay, so now the legal arguments. The first things Plaintiffs lost on, and this is critical, is called “Standing.” In order to bring.../12
... a case in court, you have to have standing, meaning the right to sue. You have to show you 1) suffered an injury, 2) that the injury is traceable to the named defendants, and 3) that it can be redressed by the court. Here, the court found.../13
... there was injury to the two voters in that their ballots were canceled. But on parts 2) and 3), the case fell apart.

With respect to 2), plaintiffs’ beef was with Lancaster and Fayette counties, and not with the state or the other counties. It wasn’t.../14
... these OTHER counties who stood in the way of plaintiffs’ right to vote. Tellingly, neither of the counties they lived in were even made defendants. None of the named defendants discarded or rejected the plaintiffs’ votes. That was all.../15
... Lancaster and Fayette Counties’ doing. (In my view, some counties were making it harder on purpose for mail-in voters who were actually mostly DEMOCRATS.) Plus, it’s clear Secretary Boockvar was actually encouraging.../16
... counties to adopt notice and cure provisions, as her email to counties made clear. She actually has no power to ORDER them to do so.

With respect to 3), the Court threw up its hands. Plaintiffs demand the whole state certification be suspended, and.../17
... particularly for no certification of any result where ballots were allowed to be cured ANYWHERE, just because THEY didn’t get notice and a chance to cure THEIR ballots. But as the Court rightly concluded, denying 6.8 million people the right to vote.../18
... wouldn’t result in reinstatement of THEIR right to vote. It would only disenfranchise millions of others.

The law requires whatever redress you are seeking to be tailored to your specific injury. That is plainly not the case here.

The court separately found.../19
... that the Trump campaign could not assert “associational standing” because the constitutional interests of Trump voters are distinct from that of the Trump campaign. And in any event, the plaintiffs themselves did not have standing, so the campaign.../20
... also could not have it by proxy. Also, on Trump’s theory of “competitive standing,” citing an awful BIRTHER case (eye roll here), that case refers to the right to challenge an ineligible RIVAL on the ballot, not to piggyback onto another plaintiff’s standing.

The Court.../21
... then for good measure also dismissed the case on its merits, being careful to walk through them in case a higher court disagreed on the standing question. The gist of Trump’s argument is that Boockvar created a “standardless” system.../22
... for mail-in voting, and that this violated the plaintiffs’ rights to Equal Protection. In voting cases, the test for Equal Protection is a balancing act, because the state has a strong interest in regulating elections and to determine the way they proceed, but voters.../23
... have a fundamental right to a fair and unrestricted vote. The more restrictive the laws, the greater the court’s scrutiny, and the less restrictive the law, the less the court need scrutinize.

Here, the court found that the state.../24
... had placed no burden at all on plaintiffs. The defendant counties actually LIFTED a burden on THEIR voters by implementing notice and cure. Expansion of the right to vote in those counties did not burden the rights of voters in OTHER counties. It was perfectly... (cont’d)

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More from @nycjayjay

22 Nov
(Cont’d) ...rational for counties to adopt notice and cure. All Plaintiffs have alleged is that Secretary Boockvar allowed counties to choose whether to do so. No county was forced or not forced to.

And even if Plaintiffs could show there was some kind of unequal law.../1
... at work, the remedy they were asking for—disenfranchisement of all the OTHER county’s votes—is far too broad. A court has to either “level up” or “level down” to fix an equal protection claim. Level Up means to grant the benefit that was wrongly denied. The simple.../2
... answer here would be to count their votes. But plaintiffs are not asking for that. They are asking for a LEVEL DOWN, which is to invalidate everyone else’s votes. And THAT remedy would result in an even greater violation of the Constitution. It’s like if Plaintiffs were..../3
Read 9 tweets
19 Nov
Many of you have read the admittedly concerning NYT article discussing how President Trump has now summoned the leaders of the Michigan GOP controlled House and Senate to the White House, and that they have accepted that invitation. Here’s why we shouldn’t freak out. /1
The fear is, somehow the GOP is going to undo the will of the electorate citing alleged but as yet unproven fraud as the reason to appoint their own set of electors for Michigan. This plan, though bold, faces significant and likely fatal hurdles. Let’s walk through some. /2
First, as the attached screenshot of Michigan law shows, the process by which presidential electors are selected was established by statute back in 1954. The legislature does not have some magical power to appoint... /3
Read 13 tweets
19 Nov

Trying to imagine what the outcry from Republicans would be if two Black, Democratic canvassing board members tried to stop white, rural counties’ votes from being certified because they have suspicions about how the votes there got tallied.

The fact is... /1
...EVERY place where this B.S. is going on is a black voter stronghold. Philadelphia. Detroit. Milwaukee. When Trump and the GOP say they only want “legal” votes counted, what they are dog whistling is they only want white votes counted. Why else would Monica Palmer... /2
... agree to certify all the communities EXCEPT Detroit, which had a better accuracy in its poll books than a white area outside Detroit did?

While it’s amusing to see Rudy Giuliani crap himself... /3
Read 5 tweets
18 Nov
The GOP members of the Wayne County board of canvassers have refused to vote to certify the results in that county, throwing the final election processes into a bit of turmoil. So what happens next? /1
In MI, the duty of certification of the Wayne County vote now passes to the State Bd of Canvassers, which is half GOP and half Dem by law. The certification is a mandatory process that is supposed to be ministerial in nature, and not involve discretion by the board members. /2
The Secretary of State has already indicated that she believes her office, under the Bureau of Elections, should conduct the canvass, as is traditionally done in such circumstances. /3
Read 6 tweets
14 Nov
The TikTok kids are posting pictures of pancakes to overwhelm the #MillionMAGAMarch hashtag. I made scallion pancakes this morning, so here’s my Chinese American contribution!

2 cups flour (I prefer bread flour)
1 tsp salt
3/4 cup boiling water
1/4 cup cold water
4 scallions, chopped
6 tbsp vegetable oil (I use peanut but canola is fine)
2 tbsp toasted sesame oil

Mix together flour and salt. Add boiling water and mix until dough is shaggy. Add 1/4 cup cold water and bring dough together. Knead on floured surface around 3 minutes until smooth and elastic. Place in bowl and cover with damp towel for 30 minutes. Mix together vegetable oil...
Read 7 tweets
13 Nov
Last night in a speech to the Federalist Society, Justice Alito bemoaned the loss of “religious liberty” and cited same-sex marriage as an example of how the religious right and freedom to hold religious views are under attack. In this, he deliberately... /1
misreads the intent of the 1st Amendment guarantees of religious freedom. So let’s review:

The text of the 1st Amendment begins, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof...”

It’s critical.../2
...to note that there are two parts here, the part against “establishment” of a religion AND the part prohibiting laws preventing free exercise of a religion. The first right is commonly known as the “Establishment” clause, and the second is... /3
Read 9 tweets

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