Thread by @AkivaMCohen

ahahahahahahahahahahahah *deep breath, repeat ad infinitum*

They are appealing their trio of losses in Pennsylvania to the US Supreme Court. Cases decided by the Pennsylvania Supreme Court on November 23, November 17, and OCTOBER 23

https://twitter.com/MsMaggieMaye/status/1340747192785661954

The argument in all three cases is identical: Bush v. Gore says that you can overrule the Pennsylvania Supreme Court on issues of Pennsylvania election law

They waited until a month and a half after the election, and until after the Electors had voted, to file a petition asking SCOTUS to review.

Despite one of these cases having been decided a week and a half BEFORE the election

Let's remind everyone what those cases were.

Here's the October 23 one

It's important to note that this decision was 7-0 that the PA Election Code does not ALLOW county boards of elections to do signature matching.

No dissents. This wasn't a partisan ruling. Here's the procedural background: The Secretary of State issued guidance, Trump sued

The federal judge was thorough and demolished the Trump team's claim: there are a number of election statutes where the PA legislature expressly required signature matching; it didn't do that for absentee ballots, so there's no need for signature matching here under the code

Just before Judge Ranjan ruled, the Secretary asked the PA Supreme Court to address the same question; the PA Supreme Court is the highest court that can address questions of state law and its ruling on what state law means would be binding on federal courts (remember that, btw)

Gonna skip the part that summarizes the arguments of the parties and jump to the conclusion: Judge Ranjan got it right, the PA Election code, as currently drafted, does not require signature matching for absentee ballots.

Basically, the information the boards are directed to check doesn't include a signature to match against. Plus, the law USED to contain a signature comparison requirement, but it was specifically deleted.

It's important, for Bush v. Gore reasons, to understand what the PA Supreme Court is doing here. It is NOT saying "look, the legislature forgot to include X in our election law, and it's important, so we'll add it"

It's NOT saying "the legislature said X, but the PA Constitution

doesn't allow X"

It is simply and straightforwardly saying "this is what the election code passed by the Legislature requires or permits"

No more, no less. That is a State Supreme Court's job, and SCOTUS *cannot* overrule it on the interpretation of the election code.

OK, that's the first decision. How about the second one? This is the 11/17 decision that torpedoed Giuliani at the federal case, finding that PA law didn't require that election observers be particularly close to the actual counts

This one was decided 5-2, where the 2 dissents (Saylor and Mundy, the Republican Justices) would have found the case moot (because the parties had signed a consent order) & specifically wrote "OF COURSE no ballots would be thrown out even if the observers should have been closer"

Again, this was a straight question of statutory interpretation: What does the Pennsylvania Election Code require for placement of "Election Watchers"? There was no "Constitutional Override" involved at all.

Read these excerpts carefully.

Look, we'll get to this when I start reading the Petition (haven't done it yet), but the takeaway here is that the odds SCOTUS reverses these decisions are asymptotically approaching zero. Is it *theoretically possible* that Gorsuch and Thomas will have simultaneous aneurysms,

strip themselves naked, paint eldritch symbols all over their bodies and run into the streets dancing and screaming "textualism and federalism were lies!"? I guess. But that's essentially what the Trump campaign is asking SCOTUS to do:

not just rule that a State Supreme Court misinterpreted State Law, but that it violated the "plenary power of the legislature" by *expressly refusing to rewrite the statutes to include requirements the legislature did not*

This is the EXACT OPPOSITE of a potentially viable Bush v. Gore claim (and remember, this whole theory of "legislative power in elections is unrestricted by the state constitution" is NOT the law; it's the argument of 3 judges in a prior case, not a majority of the court)

To call this argument dead on arrival is to vastly undersell exactly HOW dead it is. We're talking stillborn, then nuked from orbit, then the ashes were gathered and buried, then an earthquake swallowed the cemetery ... and that all happened 250 years ago.

Or, to quote the master: it is an ex-parrot. It has ceased to be!

OK, case number 3: This is the 4-3 decision of the PA Supreme Court that determined which of the requirements on the envelope were mandatory and which merely directory (i.e. the legislature wanted them there, but their absence doesn't render them void)

Basically, the PA Election Code is written knowing it will be broadly construed, and the legislature didn't even require names or addresses; that was the Secretary. So that can't be mandatory.

As you can tell from the discussion (and the vote split), this is a closer textual question. But again, SCOTUS doesn't review state court interpretations of state laws. And SCOTUS will NOT have any appetite to says "cancel the votes because the name and address were preprinted"

There's a similar discussion of whether the "date" requirement is mandatory; the court concludes that since the ballot has to be received by election day anyway, the date on the declaration can't possibly be critical information

OK, with that background in mind, let's take a look at the Petition for Cert itself

Oh, come the hell on

They open with an intro of "look, there are issues in a whole bunch of states", citing the Texas case the Court just kicked (bold move) and then this abomination

"A highly partisan administration official wrote a long-form blog about this" is NOT something you cite to the Supreme Court.

And yes, that's basically what Navarro's "paper" is

They then start with "Absentee ballots are bad (oh, the PA state legislature allowed them anyway)", along with footnote 7, which is the SINGLE WORST Footnote I've ever seen.

Seriously. Worse than "See Ex. ____"

I can't believe they did this

Your ENTIRE argument in this case is "the state supreme court has to be reversed because its interpretation is at odds with the 'real' meaning of the statutes, and the Legislature's authority is plenary, so that's unconstitutional"

How do you just casually drop this in?

"Your Honors, the state legislature's authority is so plenary that their decision to allow absentee voting may be invalid under the state constitution"

Did they hit their heads while they were drafting this??

Well ... this is bold bold take, considering that out of 8 judges to consider the argument that the law required signature verification, ALL 8 said "uh ... no, the law is crystal clear that it doesn't"

Also, the reference to the state's "elected Supreme Court" is going to go over like a lead fucking balloon. The Justices of the Supreme Court are not going to appreciate you taking shots at the integrity of PA's judges, and it's too easy to point out that this was cross-partisan

So this is both stupid in a general tactical sense and in the very specific "this argument can't possibly help you on these facts, anyway" sense

Y'all ... I shouldn't still be capable of shock at this stuff, but ... I'm still capable of shock at this stuff. This is so needlessly dishonest that it's clear this Cert Petition is meant for public consumption, not the court, and these attorneys should be disbarred

Oops - thread continues here

https://twitter.com/AkivaMCohen/status/1340774551723139072

How the fuck do you review the procedural history of this, and suggest that Boockvar thought her guidance was problematic, without mentioning the federal case you filed, lost, and haven't appealed on this issue??

Seriously - I don't see how they can seek review on this issue at all. They lost on it in Federal Court. Their time to appeal expired (unless they filed one and it's just not showing up on courtlistener). It's res judicata. You can't challenge it again

And then to top it off by claiming "the partisan Supreme Court obliged" - when it was a 7-0 decision that didn't break down on partisan lines? This is shockingly dishonest, even given the low bar Trump's team has set

BTW, tweets may be slow, I'm watching my Jets do the Jetsy thing and work on blowing the chance to draft Trevor Lawrence

Meanwhile, here's Trump's argument that the PA Supreme Court's "interpretation" of the election code as not allowing for challenges during vote counting is "odd," side-by-side with the PA Supreme Court citing the specific deletion of election challenge procedures

I mean, sorry, but "you can pay $10 per ballot challenged" isn't going to trump the legislature specifically deleting the challenge procedures

Case 2 is just naked "tell the PA Supreme Court it misinterpreted PA law" - no. Sorry, no.

Case 3. At some point, if you weren't a dishonest hack who disgraces the profession of law and should never have passed the character and fitness evaluation, you would want to mention that the name and address information was TYPED ON THE ENVELOPE

Also, what the hell is that footnote? "OK, sure, this wasn't a change to a legislative requirement, but we don't like it, either"?

Also, you'll note that there isn't a citation to ANYTHING in the record for the claim that other counties tossed votes without handwritten addresses, which inherently torpedoes any equal protection claim

Oh, really? Well, are you seeking cert on that? No?

Then fuck off

"We don't think enough ballots were invalidated" is not a winning argument, guys

Leaning hard into "you can reverse the state supreme court's interpretation of state law"

But also, the continued attacks on judicial integrity are so goddamned counterproductive. And they add nothing. NOTHING.

Except as propaganda

These arguments are not going to carry much weight at all where the text of the statute doesn't directly contradict the State Supreme Court - even if enough judges were inclined to the Rehnquist principle, which all of this is hopefully pushing them away from

And what does Trump want? Either "decertify the election and allow recertification after a ballot by ballot approval process" (not gonna happen) or "let the Pennsylvania legislature appoint new electors to vote after the date set by Congress" (ditto)

FUCK. YOU.

No, seriously. Go fuck yourselves. You dishonest, malodorous, disingenuous embarassments.

There's also a due process argument that was specifically not raised in any court below - that the AGGREGATE of the three challenged decisions creates a due process issue. They can't bring this up for the first time at SCOTUS

Seriously - these attorneys are an absolute disgrace to the profession. It's like they took the caricature of lawyers in 1,000,000 old lawyer jokes and decided to give it human form

Finally, mootness. You'll note the utter absence of any citation for the idea that "a bunch of guys claiming to be electors got together and voted for Trump" results in a legally meaningful "competing slate"

Plus the suggestion that the Court should consider this even after Biden is inaugurated.

These fucking guys.

So, all that said - will the court take the case? I sincerely doubt it.

Should it? IMO, yes. The country is on fire, and literally the only thing that can stop it is a strong SCOTUS decision rejecting this nonsense