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15 Dec, 4 tweets, 3 min read
I got an e-mail today from a county official in Texas who had some choice words about my analysis of the Texas #SCOTUS case and my responsibility as a law professor to fairly present "both sides."

I hope he enjoys reading my 1,336-word reply half as much as I enjoyed writing it.
Here’s the original note, with identifying information redacted:
Here’s my response:

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More from @steve_vladeck

Steve Vladeck Profile picture
16 Dec
There's a new piece in @TheHillOpinion arguing that, if Republicans *slow down* the counting of electoral votes enough, they can generate a scenario in which Trump wins:

thehill.com/opinion/white-…

Here's a short #thread on why this scenario is not possible—let alone plausible:
The claim rises and falls on the 12th Amendment. It provides that, if no presidential or vice-presidential candidate receives a majority of electoral votes, they're chosen by the House (one vote per state) and Senate (one vote per Senator), respectively:

law.cornell.edu/constitution/a…
With Republicans controlling a majority of state delegations in the new House, and perhaps a majority of the Senate as well (depending upon GA), the argument goes that, if they just stall long enough, they can choose Trump and Pence.

This argument just doesn't work. Here's why:
Read 6 tweets
Steve Vladeck Profile picture
8 Dec
1. Texas is trying to sue PA, GA, MI, and WI to challenge their election results *directly* in #SCOTUS.

How can it do that, how does that work, and is this going anywhere?

Here's a quick #thread on the apex of legal arcana:

The U.S. Supreme Court's "original jurisdiction."
2. One of the reasons *why* the Founders created a Supreme Court was to resolve interstate disputes (e.g., over borders, water rights, etc.).

Because lower courts might be biased, #SCOTUS was given "original" jurisdiction in such cases — allowing such suits to *start* there.
3. And today, in suits between states, #SCOTUS's original jurisdiction is *exclusive,* meaning that lower state and federal courts *lack* the power to hear disputes between two or more states:

law.cornell.edu/uscode/text/28…
Read 11 tweets
Steve Vladeck Profile picture
8 Dec
It looks like we have a new leader in the “craziest lawsuit filed to purportedly challenge the election” category:

The State of Texas is suing Pennsylvania, Georgia, Michigan, and Wisconsin *directly* in #SCOTUS.

(Spoiler alert: The Court is *never* going to hear this one.)
Although the Supreme Court has “exclusive” jurisdiction over disputes between states, it does not automatically hear all such cases.

Rather, states have to receive “leave to file,” which usually requires showing that there’s no other forum in which these issues can be resolved.
Here’s the full (and insane) filing:

texasattorneygeneral.gov/sites/default/…
Read 6 tweets
Steve Vladeck Profile picture
6 Dec
1. A lot of reactions today to Justice Alito moving up the deadline for PA to respond to @MikeKellyPA's application for an emergency injunction to throw out PA's certification of its presidential electors.

Here's a quick #thread on why none of this matters—or is going to matter:
2. First, there's the obvious point: Even if this gambit somehow succeeds (spoiler: it won't), the worst-case scenario is that PA's electoral votes get tossed.

In that case, Biden would *still* receive 286 electoral votes when the Electoral College votes on 12/14. He needs 270.
3. Now, let's get to why the Kelly suit isn't going anywhere. First, it was dismissed by the PA Supreme Court based upon a state procedural bar ("laches"). #SCOTUS does not have jurisdiction to review state court decisions that rest on such "independent and adequate" state rules.
Read 14 tweets
Steve Vladeck Profile picture
27 Nov
Here is the unanimous, 21-page opinion by the Third Circuit rejecting the Trump campaign's appeal in the Pennsylvania case, written by (Trump appointee) Judge Bibas:

justsecurity.org/wp-content/upl…
As Judge Bibas writes:

"Free, fair elections are the lifeblood of our democracy. Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here."
The Trump campaign has the right to ask #SCOTUS to review this decision, and it has the right to ask the Court for an injunction pending appeal. But as Judge Bibas's opinion makes clear, try as they might, this lawsuit has no chance of succeeding.
Read 4 tweets
Steve Vladeck Profile picture
12 Nov
This is ... different:

The Trump campaign has filed a wide-ranging lawsuit challenging the counting of votes in Wayne County (Detroit) not just in a federal district court in Michigan, but in the U.S. Court of Federal Claims in D.C. — which has *no jurisdiction* in such cases:
Here's the complaint. I'm not kidding: They literally filed the W.D. Mich. complaint in a different court that only hears monetary claims against the federal government:

justsecurity.org/wp-content/upl…
To be clear, I don't think this is malicious; it seems pretty clear it's just a filing error. But it says a lot to me about where we are that we're seeing these kinds of errors.
Read 5 tweets

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