Thread by @AkivaMCohen

Mike already did a good thread on two of the three opinions out of the PA Supreme Court today. You should read his thread for the highlights (the court agreed, 7-0, that there was no basis to toss out any of the ballots or delay certification). I'll cover the concurrence

https://twitter.com/questauthority/status/1332853948059963392

For my non-lawyer friends who don't know, a concurrence is basically a judge writing separately to say "I agree with the decision reached by the court, but want to give a different or additional explanation for why".

Judge Wecht's concurrence is actually really important, because it explains why the "PA legislature can just 'take back' the whole 'election' thing and directly appoint the electors" argument from Rudy, Jenna, and the rest of the clown crew is DOA. With that intro, here we go

The opinion is here. pacourts.us/assets/files/s… It starts by agreeing with the Court's ruling that the entire suit is barred by laches (which is a doctrine that says "if you wait too long to bring your claim, and the delay causes harm, the court won't hear your case")

Before he gets to his additional points, he spends a little time reinforcing that yeah, these plaintiffs are definitely barred by laches. Not only did you know about this law for a year before you suddenly decided to challenge it, but you participated in primaries under it

Basically, laches is sometimes a hard, fact-intensive call. When is delay *too much* delay? When does it cause harm? When would a plaintiff who was really paying attention have brought the claim?

Applying laches in this case? Here's what it looks like

This isn't a remotely close call, and anyone trying to tell you it shouldn't have been killed based on the delay has an agenda. The plaintiffs knew everything they needed to know to bring suit for more than a year before suing. In the interim, millions of people relied on the law

to vote by mail, exercising a fundamental right. If the law actually *was* unconstitutional, then the decision to wait until after the election would - if plaintiffs got the relief they wanted - be directly responsible for harming millions of people by invalidating their votes

There really isn't a clearer case for applying the "sorry, you waited too long to speak up" doctrine than this one.

Now to the reason he wrote separately. Judge Wecht, it seems, is concerned by the raft of cases that are expressly asking courts to invalidate people's votes and toss out the election. Plaintiffs are acting like this is routine. It's not, and he wants to be clear about that

First of all, he explains, we don't just cancel election results for anything. Basically, if you want election results voided, you need to show two things: (1) That there was fraud; and (2) that the fraud impacted the results.

These plaintiffs aren't even claiming fraud

By the way, do you think Trump is please by how many courts are quoting Rudy's "this is not a fraud case" line? Rudy forgot the cardinal rule of litigation: the battle is not the war.

Rudy wanted to avoid the heightened pleading requirements of Rule 9 - and he won that battle. But he did it by expressly disclaiming fraud, and proving fraud was the only way Trump could have won the war. Tactically sound, strategically oblivious.

And with that, we get to the real meat of the opinion, and something that @questauthority, @greg_doucette and I (and others) have been saying for weeks now: there is NO way - none - for a state legislature to just ignore the election results

Start with what the Constitution says, which Wecht quotes: States appoint Presidential Electors "in such Manner as the Legislature thereof may direct".

Pennsylvania chose "by elections" and its legislature passed a law saying so.

Pennsylvania's law does not have a "But the Legislature [which PA calls the "General Assembly"] can step back in if it wants to" trap door. So if the Legislature wanted to do that, it would have to pass a new law allowing it to - one that Governor Wolf would promptly veto

And since that veto would mean any attempt by PA's legislature to appoint electors would violate PA law ... it's not going to happen.

But wait, there's more! Because even if it somehow passed and wasn't vetoed, it STILL wouldn't change anything. Why?

Because the Constitution says that CONGRESS (not the state legislatures) get to determine the TIME at which Presidential electors are appointed. And Congress chose Election Day - which has now come and gone. So PA is limited to appointing electors by the manner in place that day

Which, again, was by popular election, without any role for the legislature. PA can change its law for future elections, if it wants.

But the General Assembly can do nothing - nothing at all - to impact the one that just happened. Nothing.

And with that, Wecht wraps up by driving home how dangerous, illegitimate, and ultimately useless Rudy and Jenna's call for a "legislative putsch" is. It can't work, guys. The law and Constitution don't allow it. Even if you're shameless enough to try.

A short opinion - but a more important one, I think, than the main decision of the Court.