Thread by @AkivaMCohen

So, quick rundown of the latest #Squidigation decision: It's very thorough; 36 pages of Judge Parker explaining that Powell and her merry band of fuckups lose for every conceivable reason

https://twitter.com/AkivaMCohen/status/1335935899360780288

First: 11th Amendment Immunity. Basically, states (and their officials) have sovereign immunity; you can't sue them in Federal Court except to the extent that they agree to be sued there. Quick thumbnail of the doctrine here

There are only 3 exceptions to this: 1) Congress says "you can sue your state for this"; 2) the state agrees to be sued; 3) Younger, a case that said "you can sue your state if you are just seeking an order saying 'stop violating my rights'"

In other words, if the state passes a law that says "no talking politics in public" you can sue for an order saying "that's unconstitutional and can't be enforced" but not for damages from having your 1A rights violated in the past

I'm sure you can see where this is going: Exceptions 1 and 2 don't apply; Congress didn't say "no sovereign immunity" when it passed 42 USC 1983 (the civil rights statute the plaintiffs sued under) and Michigan hasn't waived it. That leave Younger as the only remaining option

Shit, not Younger. Ex parte Young. (Younger is a different issue). Apologies

Anyway, Young doesn't apply, for two reasons: 1) it NEVER applies to state law claims (so the Plaintiffs' claims that Michigan violated its own election code are barred); 2) The Plaintiffs are asking for backwards looking relief ("decertify, etc") not an injunction against future

violations of their rights. So that exception isn't available, either.

Bottom line: The Plaintiffs have no ability to sue any of these defendants at all, so they lose.

Next, Judge Parker moves on to mootness: Even if they *could* sue these defendants, the court couldn't give the plaintiffs any relief, so the case is moot

Here's what the Plaintiffs asked for

The problem with all that? Before they bothered to sue, the results had already been certified, the certification passed to the Archivists, and the time set in Michigan law for requesting special elections (based on voting machine errors) or recounts had expired

For all of you nervous folks out there - and I know there are a lot of you - pay special attention to the footnote: There is no longer any legal avenue left for challenging Michigan's election results.

It's over.

The opinion then runs through why all of this means the case is moot; not gonna take you paragraph by paragraph but it quotes both the 11th Circuit's decision in Wood ("we cannot turn back the clock and create a world in which the 2020 election results are not certified") and

Wecht's concurrence in the PA Supreme Court case: "What are you idiots smoking, there's no legal mechanism for ignoring the vote, morons"

(I paraphrase)

So, our intrepid band of adventurers sued people who cannot be sued for relief that can't be granted. (Exactly the same as if they had sued Daenerys Targaryen and asked the Court for an order directing that they be awarded a dragon egg). But even if the court could ignore that...

They managed to file their lawsuits too late

By now, you're all familiar with the concept of laches, right? That if you sit on your hands and let the "bad thing" play out, when you could have stopped it earlier, and the delay harms people, the Court's not going to pay attention when you suddenly wake up and say "stop em!"

And oh boy did they ever file them late. Every aspect of their claim was late, especially its core; if you are going to sue about alleged software problems you claim have been discussed for a decade, do it *before* the fucking election

And, of COURSE the delay harmed the voters and defendants; we've now had an election and blown by Michigan's statutory deadlines for election challenges. Done.

But the Court isn't done yet. Even if they hadn't sued Santa for a real live baby Yoda, and even if they hadn't waited for after Christmas to file the suit, the Court *still* wouldn't hear it.

Why? Abstention

Abstention (I'll simplify) is a doctrine that basically says "look, Federal Courts, some things are better left to state courts. Where that's true, Federal Courts should dismiss the cases instead of hearing them.

There are a number of different situations where that comes into play, and the various abstention doctrines are known by the names of the cases that made them famous. Colorado River abstention - federal courts shouldn't take up issues already being litigated in a state court case

Burford abstention - federal courts can choose not to hear challenges to state administrative agency orders

Pullman abstention - don't assess the constitutionality of ambiguous state statutes until state courts have had an opportunity to interpret those statutes

Younger abstention (which is why Younger was on my mind earlier) - you can't hear a civil rights claim where the plaintiff is actively being prosecuted for the underlying conduct

Here, Colorado River applies, because there were state court cases challenging the election results. Detroit argued the Court should also abstain under Burford and Pullman, but Judge Parker was like "look, this is the fourth separate ground they lose on, one abstention is enough"

And yeah, if you're counting with me, that's FOUR separate reasons they lose.

There are still 13 pages of opinion left

Next, standing. Again, if you've been following along, we've seen this issue come up before.

And oh, this is funny

Y'all, I don't think that Judge Parker was amused by Powell and crew citing the Wisconsin *scheduling* order as an endorsement of their "no, really, underwear goes *outside* the pants" legal theories

I'm just gonna post the screenshots here so you can see what I mean

Guys, courts do "even assuming you could show X, you lose because of Y" all the damn time.

This is the very first time I've ever seen a judge drop a footnote to say, specifically, "I am not finding you showed X"

That's because lawyers generally understand "Even if you showed X" does NOT mean "I find that you showed X," and no judge would expect any sane lawyer to argue that "even if you showed X you would lose for Y" means "the court found we showed X"

Judge Parker very very clearly does not have that baseline assumption for Sidney Powell and the gang who couldn't sue straight. It appears she fully expected that, without that clarification, they would have run around to other courts and the public saying

"the only reason we lost is it's beyond the power of the court to fix the equal protection violation, but the court saying that means that the court believed there WAS an equal protection violation"

It's almost impossible to accurately convey how fucking thoroughly these clowns have destroyed their professional reputations

Anyway, back to standing: Are you idiots serious? The Court can't direct Michigan be decertified and thereby disenfranchise millions of Michiganders. Since you can't get what you want, you have no standing on your equal protection claim.

Next, the Elections/Electors clause claim that only the Legislature can set the rules. Again, we've seen this one before, so say it with me: Only the Michigan Legislature has standing to make this claim

The plaintiffs also cited Carson v. Simon, the 8th Circuit case finding that nominees to be electors have standing under Minnesota law. Judge Parker first says "I think the 8th Circuit got it wrong, and I agree with the dissent in Carson that says so"

(Note: She can do this only because Michigan is NOT in the 8th Circuit; decisions from Federal Courts of Appeal are only binding on the District Courts in that specific circuit; for any other court, they are just "persuasive authority" - meaning a source the court respects but

does not NEED to follow unless the reasoning of the decision convinces the Court that the case was decided correctly)

She also notes that the Third Circuit rejected Carson's standing decision (in Bognet).

So, we're now 30 pages deep and the Court has found 5 separate reasons that the Plaintiffs are not even allowed to get past the door of the court to make their claims. Judge Parker, basically:

(Hope you all catch the layers in that reference)

Anyway, after all of that, we get to the merits. I can't begin to tell you how unusual this is. This decision is ALREADY appeal-proof; these plaintiffs are not winning a reversal on 5 separate issues barring their claims. Courts will usually stop there. Parker does not.

First: "No, not every violation of election law creates a constitutional issue under the Elections/Electors clauses, dingbats"

Equal Protection: Look guys, conspiracy theories and "I believes" and "may have happeneds" is NOT evidence. You lose.

So no likelihood of success on the merits.

But

Again, even if you could escape all the preliminary issues, AND if your case on the merits weren't actually one of those spring-loaded fake soda-cans filled with snakes, you'd STILL lose because of the other preliminary injunction factors: irreparable harm, public interest, etc

Let's take a second to recognize the extraordinary thing about this opinion. The Judge has laid out 8 - 8! - separate reasons they lose. Immunity, mootness, laches, standing, abstention, no likelihood of success on the merits, no irreparable harm, harm to others/the public

As my friend here notes, this is VERY unusual; in a typical case, maybe - maybe! - a judge would lay out one or two alternative grounds for a holding, just to ward off appeal.

https://twitter.com/apark2453/status/1335961183459766273

This? I think it's safe to say this is no longer about preserving the ruling from being reversed on appeal. That's not what Judge Parker is doing as she demolishes the case for the 4th, 5th, 6th reason, etc.

So why is she doing it? Federal Judges aren't exactly flush with time; they've got large caseloads. Don't get me wrong, I'd love a federal judgeship, it's a good life with the ability to do important work and real financial security. But they don't generally spend time needlessly

Her conclusion gives us the answer, I think. Here it is.

I see two things going on here. First, Judge Parker sees what these people are doing to our country - and it's an outright attack on our country, nothing less - and isn't going to allow anything she writes to play into it. She got to the merits because she had to, in context

But also, that first highlighting. @Catsorange1, you questioned it? Well if you read the opinion, you can understand why. This litigation fails not for one reason, not for two, but for every conceivable reason, and in obvious and well-settled ways.

The only even *arguable* portion is the standing issue relying on Carson v. Simon. But the rest? There's no good faith basis for any of it.

And she knows it. And she wanted to call out that, because of that, this is not really a lawsuit, just a political ploy.

To do that, just writing an opinion that would survive appeal wouldn't be enough. She needed to make clear - even to non-lawyers - how thoroughly frivolous this case and request was.

So you tell me. Did she succeed?