1. Everyone needs to take a deep breath.

Yes, the President and far too many Republicans are *continuing* to engage in dangerous, anti-democratic behavior—despite having utterly failed to substantiate *any* of the claimed electoral improprieties. But it's just not going to work.
2. First, even if a Senator like Hawley joins a House member's challenge to a particular state's electors, there's nowhere near a majority in *either* chamber (let alone both) to sustain the challenge. All that will happen from these challenges is the process getting slowed down.
3. Second, no, that doesn't mean that Republicans can "run out the clock." Even if McConnell somehow allowed this nonsense to drag on for *two weeks,* we'd end up with Acting President Pelosi at noon on 1/20, not President Trump. And the Twelfth Amendment isn't to the contrary.
4. Third, none of the (still pending) lawsuits are going to change any of this. #SCOTUS isn't about to throw out certified electors, and neither Judge Kernodle nor the Fifth Circuit is going to somehow enjoin VP Pence from performing his *ministerial* duty of counting the votes.
5. I know emotions are raw and tempers are short, but I think it's actually affirmatively *unhelpful* for folks to buy into any of the preposterous conspiracy theories being spread in right-wing social media. They've been wrong *from the start*; the actual *experts* haven't been.
6. None of this is to excuse any of the indefensible behavior from the President or far too many elected Republicans at both the state and federal levels.

But there's no necessary correlation between indefensible arguments and plausible ones. This is all just PR—and sore losing.

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More from @steve_vladeck

18 Dec 20
#BREAKING: #SCOTUS throws out challenge to Trump administration's exclusion of undocumented immigrants from next year's apportionment, with 6-3 majority holding that "this case is riddled with contingencies and speculation that impede judicial review":

supremecourt.gov/opinions/20pdf…
Majority: "Consistent with our determination that standing has not been shown and that the case is not ripe, we express no view on the merits of the constitutional and related statutory claims presented. We hold only that they are not suitable for adjudication at this time."
Writing for himself and Justices Sotomayor and Kagan, Justice Breyer dissents on justiciability, and would also affirm (holding that the Trump memo is unlawful) on the merits.
Read 4 tweets
16 Dec 20
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
15 Dec 20
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:
Read 4 tweets
8 Dec 20
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
8 Dec 20
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
6 Dec 20
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

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