Thread by @AkivaMCohen

OK, #Squidigation fans, I think we need to talk about the new Wisconsin suit Donald Trump filed - personally - in Federal Court last night. The suit is (as usual) meritless. But it's meritless in new and disturbing ways. This thread will be long

https://twitter.com/marceelias/status/1334329183271522305

Not, I hope, Seth Abramson long. But will see.

I apologize in advance to my wife, who would very much prefer I be billing time (today's a light day, though) and to my assistant, to whom I owe some administrative stuff this will likely keep me from 😃

First, some background. Trump's suit essentially tries to Federalize the Wisconsin Supreme Court complaint his campaign filed, which we discussed here.

https://twitter.com/AkivaMCohen/status/1333858999993831431

If you haven't already, go read that thread. I'm not going to be re-doing the same analysis, and I'm not going to be cross-linking to that discussion as we go. (Sorry, I like you guys, and I see this as public service, but there are limits)

Also, @5DollarFeminist has a good stand-alone thread analyzing the new Federal complaint - it's worth reading as well, though some of the analysis will overlap.

https://twitter.com/5DollarFeminist/status/1334359307920543744

Last bit of preliminaries - we'll also be talking about the DNC's motion to intervene in that Wisconsin Supreme Court action, which you can find here.

democracydocket.com/wp-content/upl…

OK. Let's get to it.

First of all, note the plaintiff in the new Federal suit, and compare it to the plaintiffS in the Wisconsin suit

This is, to say the least, unusual. Working from memory, I assumed that Trump had not personally been a plaintiff in the Wisconsin suit and that he (rather than the campaign) was the Plaintiff in the federal suit to try to avoid an argument that he couldn't file 2 cases on the

same basic issue. But Trump was a plaintiff in Wisconsin, too. So that can't be it. And if so, why aren't the Campaign - and Pence - named plaintiffs here, too?

There have been reports that Pence wants out of this whole debacle. That may be particularly true for this case, which - at face value & as we'll talk about - would call into question every federal election in Wisconsin for years, including Ron Johnson's

thedailybeast.com/mike-pence-bac…

I'm not sure how the campaign is structured, but I would bet that there was strong pushback to this suit by Pence and that Pence basically said "you do what you want but don't put my name anywhere near this"

OK. Substance. The first clue we get as to the claims is in the "Jurisdiction" section, where you tell the Federal Court, which can only hear certain types of cases, why your case is one that it can consider.

Section 1983 is the civil rights act - he's alleging that the "violations" the complaint will identify infringed on Wisconites' right to vote.

Article 1, §4 is the Elections Clause: State legislatures get to set the "time, place, and manner" for Congressional elections

Article 2, § 1, Clause 4 is the Electors Clause: For *Presidential* elections, State legislatures get to set the "Manner" of choosing electors. (Congress gets to set the "Time").

The 14th Amendment will be a due process claim. Not sure how the 1st plays in - probably a right of association claim.

Next the complaint transitions to what it says is a summary of the wrongful acts in Wisconsin. "Ultra vires", btw, is latin for "beyond your authority" - essentially, that the person in question had no legal power to do what they did

Here's the complaint's general summary of the issues they allege:

1) Changing absentee/mail in ballot rules
2) Using drop-boxes
3) Counting ballots without poll watchers able to see
4) Messing with the certifications on mail-in ballots
5) "Permitting ballot tampering"

The complaint asks for an expedited schedule sufficient to let Trump get up to SCOTUS by 12/11. This is insane. He's asking for a schedule built to accommodate 3 levels of appeal in 10 days - after waiting A MONTH after the election to file the case

Page 9 of the complaint - paragraphs 37-41 basically set out the argument that courts cannot constrain state legislatures' exercise of its Constitutional right to set the "manner" of appointing electors.

But it goes further:

That last paragraph is critical to their claim: they will be arguing that *interpreting* state statutes governing presidential elections is a violation of the Elections and Electors clauses. That is very very wrong.

BTW, a side note: Donald J. Trump is not - unless I missed something that would have been very obvious - a candidate for the US House of Representatives or US Senate. <checks Google>

Nope, he was not

There are going to be standing issues with all his claims. But there isn't even the ghost of a shadow of the as-yet-unborn grandchild of a chance that Trump has standing to allege a violation of the *Elections* clause governing election of Senators and Representatives.

Any reference to claims under the Elections clause in this complaint is completely and utterly frivolous.

The next several pages of the Complaint (which is doubling as the President's brief in support of his motion for injunctive relief) are charitably described as A Trumpy Salute to Federalism, in support of the "Leave it to the Legislatures" argument

I'm not kidding.

Next, Trump pauses to explain to the Court that yeah, the Wisconsin state legislature probably knows about all the terrible stuff he's about to complain about, but it should let him bring these claims on its behalf anyway

This is basically an argument that the court should find he has prudential standing to raise these claims. If you remember from old threads, "prudential standing" basically means "even if you got harmed by person A's violation of person B's rights, we're not going to let you sue"

"Because those are person *B's* rights, not yours. If person B wants to sue, fine. And you can tag along. But you, on your own, without person B? No."

Here, Trump is arguing the Court should let *him* sue for the alleged violation of the Legislature's rights, even though the Wisconsin Legislature isn't (and, as we'll see, hasn't for years)

OK, minor mental health break to keep me from saying Iä! Iä! Myopsida fhtagn! (as someone suggested I might). Back to it

Finally, at paragraph 73, the complaint starts to set out what it says the problems were. First, on photo ID - paragraphs 73-82 go into the background: Wisconsin really wants voters to give ID

And now, finally, we get to the issue they want to raise: the "indefinitely confined" issue from the Wisconsin case.

I know I said I wasn't going to cross-link, but I'm realizing now that this will be hard to follow if I don't. So, if you need a refresher on what they alleged on this issue in the Wisconsin case (and why it's wrong), start here

https://twitter.com/AkivaMCohen/status/1333879379961798656

Just realized I linked y'all to the DNC's motion to intervene, not their actual brief, in the Wisconsin case. Here's that brief, which we're about to quote.

democracydocket.com/wp-content/upl…

The DNC's brief points out what my thread did: that the Wisconsin Election Commission issued - and the Wisconsin Supreme Court expressly approved - guidance on the meaning of "indefinitely confined" that torpedos Trump's case

What is Trump to do? Obviously, he's about to lose in the Wisconsin Supreme Court, which already decided that issue. So he runs to Federal Court, and argues that the WEC and Wisconsin Supreme Court violated the constitution by putting out (and approving) this guidance

Here's their argument that the guidance doesn't comply with the Election Code

There are SEVERAL basic, fundamental problems with all of this.

First, Trump is *asking the Court to interpret the Wisconsin Election Code* in order to reach a conclusion that *nobody* can interpret the Wisconsin Election Code without violating the Constitution

Second, even if you get around that Mobius Strip of an argument, Trump is asking a Federal court to tell a State Supreme Court that the State Supreme Court is *wrong* in its interpretation of a STATE statute.

This ... is not a thing Federal courts can do.

No, I mean it's really really not. Not even SCOTUS.

Remember all that Federalism stuff Donny was waxing poetic about a few pages ago? This is part of it. State Supreme Courts are the ultimate arbiters of what State law *means*, in the same way that federal courts decide what federal law means

The Elections/Electors clause cases about things being exclusively committed to legislatures may mean that state constitutions can't constrain legislatures' choice of the "manner" of choosing electors (for example, if the state constitution said "every citizen can vote for prez"

And the state legislature decided to pass a law saying "the Legislature will directly appoint Presidential electors," the Supreme Court might find that law could not be defeated by the provision of the state constitution requiring a vote)

But what Trump is challenging here is NOT the State Supreme Court, or an executive branch official, saying "I know the Legislature wanted X, but we think NotX is better, let's do NotX"

This is the state supreme court exercising its core function of saying what the law passed by the Legislature *means*

Federal courts are prohibited from second-guessing that

Oh, and it gets better.

Because the Wisconsin Elections Commission? That's not an agency of Wisconsin's executive branch.

It was established *by statute* specifically to manage and administer *and interpret* Wisconsin elections and election law

So the WEC and its guidance, and interpretation of the Wisconsin Election Law, is *expressly* part of the "manner" in which the Wisconsin Legislature determined that Wisconsin would select presidential electors

And btw? Even if federal courts could look at this issue at all (again, they can't), the Legislature delegated interpretation and implementation of the Election Code to the Election Commission. That has implications under the Chevron Doctrine

Chevron was a 1984 Supreme Court case that basically found that where an agency is charged with enforcing a statute, courts MUST defer to the agency's reasonable interpretation of that statute.

Even if it thinks a different interpretation would be reasonable or better, the court must go by the agency's interpretation unless that interpretation is, to use a technical term, absolutely crazypants

Note - Lex disagrees with me and says the federal court would apply Wisconsin deference doctrines. That's an interesting side rabbit hole that I'll only do one tweet on

https://twitter.com/lex_nyc/status/1334530265625075717

Which is that Wisconsin has its own deference rules, but those are expressly driven by Wisconsin state constitutional considerations that - according to Trump - CANNOT apply here and don't match the US Constitution. See littler.com/publication-pr…

So I think at the end of the day a federal court would have to apply Chevron or the functionally analogous Wisconsin Tetra Tech standard. But ... who knows?

OK, back to the Trump complaint. The last issue is that the campaign is simply wrong on the merits here, IMO. The guidance was accurate: the definition of "indefinitely confined" includes not only "illness" or "disability" but also "infirmity"

Basic rules of statutory interpretation tell us that "infirmity" has to mean something different than "illness" or "disability"; the fairest reading of it is that it encompasses, in the context of the pandemic, "uniquely susceptible to harm from the disease" ...

i.e. that you're a person who has a co-morbidity that would make getting Covid more dangerous to you than to someone without co-morbidities. Or that you live with or are in close contact with someone who has co-morbidities.

In other words, pretty much what the guidance said: that given the pandemic, many voters might meet the standard of "indefinitely confined" until the pandemic is over.

And folks ... a HUGE percentage of the American population fits that definition.

The complaint then goes into the March 25 "every voter subject to Safer at Home is indefinitely confined" guidance that was the basis for the Wisconsin Sup Ct complaint, and then circles back to the "WEC guidance was no good, either"

Again, this is riddled with problems: Everything we said above, plus the fact that "two members of the Wisconsin Legislature is not 'the Wisconsin Legislature'"

Oh, and that whole long time frame you're referencing, Donny? Say it with me now . . .

LACHES!

You knew this was the guidance since March 2020. You were content not to challenge it as unconstitutional until a month after the election you lost? And now you want that challenge to disenfranchise every Wisconsin voter? Sorry, that's not going to fly

And yes, that's exactly what they want

Next, Trump points to Wisconsin's concern for absentee ballot fraud and insistence on all the procedural safeguards in its statutes, and then spends several pages attacking absentee voting generally as susceptible to fraud.

Trump also wastes everyone's time arguing that Wisconsin in particular was going to be the target of fraud, because it was supposed to be close.

Before we move on, I'd like you all to spend some time thinking about what it means when a candidate for President says "of course campaigns will target close states for fraud"

Anyway, all of this (again, pages of this) was in support of the argument that "Wisconsin election officials should have tightened up the rules instead of doing what they did, so it's REALLY bad that they violated Wisconsin election law"

To call all of this a stupid waste of time, legally, would insult mere stupidity. If they are right about the election officials violating election law, then this doesn't add anything. And if they aren't right about it, this doesn't change anything. So why spend pages on it?

Because, as my friend @Miz_Rosenberg points out, this is NOT, primarily, a legal document. Trump is using the courts to advance a warped narrative, which is what this section of the complaint is there for.

And that's why I led off by talking about how disturbed I am by this one

Trump's other complaints do double duty, yes. But they mostly limit themselves to allegations relevant to the particular legal challenges being made. Even Giuliani's ridiculous "history of fraud in Philly" was in support of the argument that the PA Dems were trying to steal the

election for Biden and that raised equal protection concerns.

It was nonsense, but at least legally connected to the complaint.

Sidney Powell's #Squidigation suits? Bat-shit insane conspiracizing (that she, at least, truly believes) but at least related to the legal claims they were advancing.

And the attempts to disenfranchise whole states are disgraceful, but they at least are proceeding - and being beaten back - on legal channels.

This? The attorneys who drafted and signed this aren't loons. They knew that none of this had any bearing on the election contest. And they put it in anyway, for no reason other than to further their client's political narrative that even when he loses in court, he was robbed

It's disgusting conduct by the attorneys, and they should be ashamed.

Don't contact them. But I'm including their names here for a reason. Check the highlighting.

No Wisconsin attorney was going to touch this filing. Not even as local counsel, apparently.

OK. Back to the legal analysis of this document, keeping in mind that its lack of merit is important, but not all that important in the grand scheme of things

Trump now argues that ALL mail-in balloting is unconstitutionally discriminatory - against able-bodied voters or more generally

There are SOOOO many problems with this. Putting aside the obvious (and fatal) laches issue, these differences (particularly the "no in person challenge" - like that ever happens) apply in, essentially, every state in the nation

Second, there's no "class" of "mail in voters" or "in-person voters", especially in a "no-excuse" state like Wisconsin.

EVERY voter in the state can choose to be a mail-in voter or an in-person voter, and can change that from election to election

So the state literally can't discriminate against anyone at all by having different rules for mail-in voting than in-person voting.

Voters who choose to vote in person are choosing not to vote by mail, and therefore accepting the "increased burden" Trump is whining about on their behalf. "I could've voted by mail but I wanted to vote in person and so I had to wait on a line" is NOT an equal protection claim!

Next, Trump adopts the "how dare you make voting easier" arguments from the insane Georgia lawsuit: taking grant money to encourage absentee or early voting in a pandemic is apparently a problem (can't wait to see why)

Ah, it's the ridiculous claim that Wisconsin law requires you to deliver absentee ballots in person to the clerk'S OFFICE unless you mail them.

You'll note that - with the exception of now adding a discussion of drop boxes - this is identical to their "Democracy in the Park" argument in the Wisconsin complaint. In fact, they go on to talk about "alternate absentee sites

For reference,

https://twitter.com/AkivaMCohen/status/1333933305142669313

So where did this new category (absentee ballots received by drop-box) come from? They never mentioned it in their Wisconsin complaint.

Well, they didn't. But the DNC sure did

This, again, explains why Trump is desperate to federalize that Wisconsin Supreme Court case. On Wisconsin law, he's fucked; his challengers didn't even raise "votes returned to drop boxes" as invalid during the canvas, so he's waived any objections to that

And if he's not objecting to drop boxes, his objection to Democracy in the Park is dead on arrival.

So he recasts it as a constitutional claim - again, the evil WEC changing the statutes - and tries it out in Federal court. This time with drop boxes

Where it will be ...

just as dead on arrival.

Look, all of the same problems he has with the "indefinitely confined" guidance apply here with equal force. Laches (drop boxes have been in use forever and you can't wait until after the election to challenge them), the WEC has statutory authority to do this, etc.

But the other thing with this - and the other Trump claims that aren't limited to pandemic guidance - is that they challenge as unconstitutional Wisconsin election practices that have been in effect FOR YEARS

Were he to win on any of these - and were a court to hold that these issues require invalidating the results of elections already held, not just direction to change the process moving forward - that wouldn't just impact the 2020 Presidential race

On his theory, it would invalidate ALL of the Wisconsin house races from 2020. All of the Wisconsin house and Senate elections in 2018. The 2016 Presidential Election, the 2016 House elections, and the 2016 re-election of Senator Ron Johnson.

It might - depending on how close various votes were - require invalidating a number of bills (on the ground that Johnson wasn't a senator when he voted for them).

And, in my view, the DNC (and other defendants) should move to dismiss for failure to add indispensable parties: Wisconsin's house and senate delegations

(Basically, the rule is that if you are initiating a lawsuit that will meaningfully impact someone's rights, you need to name them as a party to the lawsuit. If you don't, it can be dismissed, or you can be forced to amend).

Moving to dismiss unless Trump added the House and Senate delegations as defendants would be an evil and brilliant procedural move by the defendants: not only would it screw up his preferred timeline, but it would force Trump to sue to remove key Republican elected officials

as part of trying to protect his own ego and interest. I'd bet he would just do it, and it would be interesting to see how the party would react if he did

Back to the complaint: It alleges that the WEC put out guidance on drop boxes in August - again, relevant to laches

Note: alleging that bad things "could have happened" isn't going to be enough to overturn an election, Donny

Next he tries to Bush v. Gore it by arguing that the drop boxes didn't have standards and procedures - who knows, a clerk's office might have just left the ballots somewhere, I guess? Look, this stuff is deranged

Trying to avoid laches, they argue that this was a "last minute" change, pointing to 14 boxes added in Madison 2.5 weeks before the election.

My dude, you JUST alleged that the guidance on these went out in mid-August, 2.5 MONTHS before the election. Unless you're arguing that everything was fine until Madison added those last 14 boxes, the October 16 date of that is fucking irrelevant

Also, "2.5 weeks before the election" is still "BEFORE THE ELECTION" and waiting until a month AFTER the election to complain will not work.

They also argue that drop boxes shouldn't have stayed open until 8pm on election day because ballots had to be delivered to the clerk by 8pm on election day; this is just another version of the "WEC is wrong and this isn't delivery to the clerk" argument

Trump is now complaining that the mayors who took the CTCL grant didn't include supporting data for the idea that dropping a ballot in a drop box is safer than standing on line with a bunch of other people.

Seriously.

Trump now complaining that CTCL gave out just too much money to help people across the country vote, comparable in fact to the US's coronavirus relief to help people vote.

Yeah, that IS a problem. Just not the one you think, asshole.

Also, this is clearly partisan, which should raise questions, because big cities tend to lean Democrat.

AGAIN - there is NO plausible legal basis for any of this stuff to be in a complaint. It connects to exactly zero causes of action. It's purely political

Trump now moves on to the "filling in witness information" claim we discussed in connection with the Wisconsin complaint - see thread here.

https://twitter.com/AkivaMCohen/status/1333876468804415489

Again, Trump is running to Federal court because he needs to respond to the DNC brief, which points out that the WEC has expressly instructed clerks to do this, and has done so since 2016!

So he argues the WEC is (again) acting beyond its authority and contradicting the statute

I'm not going to go paragraph by paragraph here - everything we've already said applies with equal force to this abjectly stupid argument, especially including laches.

But one thing needs to be called out for deliberately misleading the court

Here's what Trump tells the Federal court about when the relevant guidance was issued. And also what the DNC put in its brief, so Trump had actual knowledge of before telling this to the court.

The claim that this was a new piece of guidance in October 2020 is a lie. Not a mistake - a lie. Trump was aware that the initial guidance came out and has been continuously in place since 2016. That would be TERRIBLE on laches

Instead of dealing with that, Trump's attorneys found the WEC guidance with the latest possible date that repeated this already existing rule, and just pretended to the court that the rule was JUST ADDED in late October 2020

By the way, this isn't just an *implicit* claim that this was a new change. They say it explicitly.

This is an outright, easily provable lie. Documented!

What the fuck are these attorneys thinking?

Anyway, I'm skipping past pages and pages of argument about how following this guidance that's been in place since 2016 (again, Ron Johnson's reelection) is clearly wrong and unconstitutional.

Now Trump is arguing that there needed to be observers present at the drop boxes to monitor the collection of absentee ballots.

One hiccup - the legislature made clear that the provisions he's citing don't invalidate absentee ballots if not followed

And now arguing that the mayors were part of a conspiracy to avoid poll watching. And that clearly means that the votes shouldn't be counted under 6.84 (even though the statute expressly says otherwise)

And with that, Trump wraps up. This election was unconstitutional, "remand it" to the legislature, and pay my attorneys for me

Some takeaways, beyond what we've already said:

1) Remember that reference to the First Amendment right at the beginning of the complaint? I'm glad you do, because Trump and his attorneys appear to have forgotten all about it. There's no 1st Amendment claim here

2) This entire case was driven by Trump recognizing that the responses to his Wisconsin Supreme Court case had (as I described it yesterday), nuked it from orbit. In fact, this just broke (h/t @porter9811 )

https://twitter.com/EmmaKinery/status/1334558453826805764

3) With more subtlety that Sidney Powell's insane delusions or Rudy Giuliani's boundless ignorance and buffoonery, the attorneys on this case have put together a massive disgrace of a pleading. It is, fundamentally, a political document and an attack on our system, not a legal

argument with even conceivable merit. It should never have been filed.

/fin