Rick Hasen Profile picture
22 Feb, 10 tweets, 3 min read
#ELB: Breaking and Analysis: Supreme Court Refuses to Hear Cases Over Conduct of Election in Pennsylvania, With Justices Alito, Gorsuch and Thomas Dissenting electionlawblog.org/?p=120941 #SCOTUS
You can find Justice Thomas’s opinion, dissenting from denial of cert. in two-Pennsylvania election cases, and Justice Alito’s separate dissent joined by Justice Gorsuch in the same cases, at this link beginning at page 25 of the pdf. supremecourt.gov/orders/courtor…
The Court without noted dissent denied cert. in another PA case, the Kelly case. It takes four votes to agree to hear the case, and 5 to rule on the merits. There is no indication that Justice Barrett recused herself in consideration of the merits of these cases.
None of the dissenting Justices believed these cases could somehow retroactively affect the outcome of the 2020 election.Indeed, they say it would not, but that the cases, while moot, should still have been heard because they present issues that will return to the federal courts.
The main issue is the extent to which state courts, relying on state constitutions, may change rules for federal elections put in place by state legislatures. In the run-up to the 2020 elections, these three Justices, along with Justice Kavanaugh expressed support for this view.
This “independent state legislature” doctrine is a ticking time bomb, and it is an issue the Court is going to have to resolve, because these issues will return. I explained back in November in a NY Times oped: nytimes.com/2020/11/23/opi…
So why didn’t the Court go further in this case? My guess is that it is either the fact that the case is moot (and the Court would rather address the issue in the context of a live case, but with lower stakes) OR
because the Trump cases are somewhat radioactive at the Court. Given former President Trump’s continued false statements that the election was stolen, the case would become a further vehicle to argue that the election results were illegitimate.
It would thrust the Court back in the spotlight on an issue the Justices showed repeatedly they wanted to avoid.
So the bottom line is that the independent state legislature doctrine hangs out there, as a ticking time bomb, waiting to go off in a future case.

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More from @rickhasen

11 Feb
Pressure builds on Facebook Oversight Board politi.co/3rHBi8T Scoop via @ZachMontellaro about our new letter supporting Facebook's decision to deplatform Trump.
Here's a link to our full letter on Facebook deplatforming Trump: politico.com/f/?id=00000177…
@davidakaye @julia_azari @JNelsonLDF @alexstamos @jacklerner @cailinmeister @NormOrnstein @Bertrall_Ross Jim Weatherall
Our letter about Facebook deplatforming Trump got more coverage @Politico here, noting 9,000 comments have been submitted so far on the question: politico.com/news/2021/02/1…
Read 4 tweets
19 Jan
Me @CNN Oct. 19: "What will the United States and the world wake up to on November 4, 2020, the day after Election Day? And could the US endure a close election in which Joe Biden is declared the winner but President Donald J. Trump refuses to concede?"
"If the race is close, Trump and his campaign could file lawsuits and use evidence of election administrator incompetence to convince key segments of the American right that Democrats stole the election through deliberate fraud. ..."
"Trump has already sowed distrust in the results by saying without evidence that the only way he loses is if the election is 'rigged.' ..."
Read 5 tweets
12 Dec 20
The Supreme Court dismissed Texas’s bill of complaint in the latest high-profile case pushed by Trump allies in an attempt to overturn the results of the election. The Court did not issue an accompanying opinion.
As expected, Justices Alito and Thomas, who had previously stated that the Court does not have discretion to turn down the cases, would have granted the motion to file the complaint but not granted other relief and expressing no view on the merits of the case.
Read 16 tweets
4 Dec 20
When I was on @NewsHour on November 5, I said that Trump had no grand legal strategy to overturn the results of the election. Nothing has changed in a month, other than a streak of losing, poorly conceived and worse executed cases.
If anything, the lawsuits in the last weeks have gotten worse
Read 5 tweets
29 Nov 20
You've got to be kidding me.
At the appellate level and Supreme Court level, the appointing judge is the best predictor of how a judge/justice will vote in the highest profile cases.
Not because they are hacks, but because they were chosen for their genuinely held ideology.
I can predict with near certainty how almost every Supreme Court Justice will vote in nearly every election case. And my first rule of thumb is which President appointed the Justice.
*the appointing President
Read 13 tweets
25 Nov 20
#ELB: Donor Sues True the Vote Claiming He Gave $2.5 Million to Fund Jim Bopp Litigation to Expose Fraud in Battleground States to Help Trump, But the Group Withdrew Their Complaints and Did Nothing. He Wants a Refund. electionlawblog.org/?p=119080
The complaint alleges that True the Vote through Bopp finally agreed to give back only $1 million of the $2.5 million to fund absurd voter fraud litigation, in exchange for an agreement not to sue for the rest.
The complaint also alleges that True the Vote withdrew its four lawsuits filed by Bopp in consultation with the Trump campaign.
The reason for the withdrawal have not been made clear publicly.
Read 4 tweets

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