Read on Twitter
Reassurance Thread: Pennsylvania redux:
The PDFs are available, so let's take a look. I'm already seeing some concern over the fact that there was a partial dissent, so we'll give that aspect extra attention - and I'll hopefully show you that even that isn't cause for concern. https://twitter.com/Elaijuh/status/1332831562757451776
The PDFs are available, so let's take a look. I'm already seeing some concern over the fact that there was a partial dissent, so we'll give that aspect extra attention - and I'll hopefully show you that even that isn't cause for concern. https://twitter.com/Elaijuh/status/1332831562757451776
We'll start with the per curiam opinion.
For the nonlawyers:
Appeals judges, both state and federal, generally sign their opinions. A per curiam is an unsigned decision issued by the court as a whole, rather than authored by an individual judge.
For the nonlawyers:
Appeals judges, both state and federal, generally sign their opinions. A per curiam is an unsigned decision issued by the court as a whole, rather than authored by an individual judge.
There can be lots of reasons for a decision to be released per curiam, especially in emergency cases which are heard on compressed schedules.
The per curiam order puts the bottom line up front.
They grant the application for extraordinary jurisdiction, meaning that they are taking the case without going through the normal process below.
They vacate the preliminary injunction that attempted to block certification.
They grant the application for extraordinary jurisdiction, meaning that they are taking the case without going through the normal process below.
They vacate the preliminary injunction that attempted to block certification.
They dismiss the case with prejudice. So there's nothing left to go back to the judge below.
And they finish up the housekeeping by dismissing everything else as moot.
And they finish up the housekeeping by dismissing everything else as moot.
The court was Not Pleased that the more modest remedy proposed by the plaintiffs was to discard all the mail-in votes. Or with their alternative suggestion that everyone should be disenfranchised except the members of the General Assembly.
Seriously, if your more modest ask is "let's only throw out like half the votes in this election," you're not going to look very reasonable. Ever.
The basis for the dismissal with prejudice is our now-familiar friend laches.
This is Not A Surprise.
This is Not A Surprise.
It looks like they really weren't thrilled with the delay. I love "beyond cavil" - that's basically, "no, really, don't even TRY to tell me this isn't laches."
And that's basically it for the per curiam.
Honestly, I'm a bit surprised. I expected the constitutionality issue to be addressed, even if just on an "even if this wasn't laches you lose" basis.
Honestly, I'm a bit surprised. I expected the constitutionality issue to be addressed, even if just on an "even if this wasn't laches you lose" basis.
It looks like they were too annoyed at the just spectacular and obvious bad faith litigation to dignify it with more.
So, in theory, another challenge to the constitutionality can be brought (although not this election cycle).
So, in theory, another challenge to the constitutionality can be brought (although not this election cycle).
But not by these plaintiffs. This is a dismissal with prejudice; they can't bring the same claims back to court.
That's what they get for bringing bad faith litigation like the slimy little toads that they are. FAFO, basically.
That's what they get for bringing bad faith litigation like the slimy little toads that they are. FAFO, basically.
OK. Let's look at the concurring and dissenting statement next.
For the nonlawyers:
It's possible for a judge to agree with some of the reasoning but disagree with other parts. This can result in a judge writing an opinion that's both a concurrence and a dissent.
For the nonlawyers:
It's possible for a judge to agree with some of the reasoning but disagree with other parts. This can result in a judge writing an opinion that's both a concurrence and a dissent.
CJ Saylor's concurring/dissenting opinion starts by making it clear that the court was unanimous in its view that the injunction should not have been granted - not one justice agreed with Judge McCullough's decision to do that.
No, it's not a good sign when even the judge who is friendliest to you calls the stuff you're trying to do "extreme and untenable."
Snark aside, the real take-home here is that even the two judges open to considering the idea that the mail-in voting law is unconstitutional were not remotely close to being in favor of disenfranchising massive numbers of people as a remedy.
To put it another way -
These are two justices who have some concerns about the legal arguments. They are not two partisans ready to throw out the rule of law to save Donald Trump.
These are two justices who have some concerns about the legal arguments. They are not two partisans ready to throw out the rule of law to save Donald Trump.
There was one caveat there - CJ Saylor would have thrown out the injunction, but wanted to do so after the case went through the normal process; we'll see the reasoning for that later. I suspect it's "we should let the lower courts do their job."
So instead of dismissing the case, CJ Saylor would have tossed the injunction but kept the case for prospective relief alive, in part because of doubts about the validity of the law.
Which are discussed in the footnote.
Which are discussed in the footnote.
I can't say that the footnote is unfair. I looked briefly at the legal issues earlier today, and while I thought the better argument by far is that there's no limit, I can't say that the argument that the PA constitution requires non-absentee voting to be in person is frivolous.
And I think it's reasonable for a judge who wants to look into that in more depth to want to keep the case alive. Especially since the laches issue isn't as big an issue if the only relief left available is to bar something in future elections.
Frankly, I don't like the idea that a legislature can say that you only get 6 months to challenge a law. I think that's bad on general principles. Sometimes defects aren't immediately apparent.
I find the second of these two arguments a bit more compelling than the first, but in this particular case I don't find any of them to be very compelling.
And this part is something that both CJ Saylor and Justice Mundy have been consistent on throughout the cycle - and, again, it's a view that can have some merit.
So to sum up the reasons not to be concerned about the concurrence/dissent:
1: Even the dissent was not willing to throw out votes.
2: The dissent did not hold that the law was unconstitutional, just that there's a potential issue that could use judicial attention.
1: Even the dissent was not willing to throw out votes.
2: The dissent did not hold that the law was unconstitutional, just that there's a potential issue that could use judicial attention.
3: The dissent was only to the dismissal of the case, and didn't show any firm commitment to either side's position on the merits.
I may not agree with 2 & 3, but they're normal, reasonable judge views for a case like this.
I may not agree with 2 & 3, but they're normal, reasonable judge views for a case like this.
I'm not going to dig into Justice Wecht's concurrence. It looks like there are some slaps at the bad faith in there, but it's mostly about what relief should or shouldn't be available as a matter of principle.
OK. So let's talk about what's next for this case.
Really, there is no next for this case. Yes, there are circumstances where the US Supreme Court can review state supreme court cases, but I don't see why this would be one of them.
Really, there is no next for this case. Yes, there are circumstances where the US Supreme Court can review state supreme court cases, but I don't see why this would be one of them.
As I mentioned earlier, if you want to challenge a state court decision in federal court, you can't just say that the state courts interpreted state law wrong. You need to show how the state court interpreting state law wrong creates a federal cause of action.
I don't see one here. This case seems to lack even the threadbare allegations that Rudy was making about the implementation of this voting method violates due process or equal protection - and we all saw how badly that worked out for Rudy. This case doesn't even have that.
And, no, Jenna. Yelling "Article II" won't work.
That seems to be Jenna's favorite phrase lately, possibly because that's the spot where she stopped reading the Constitution. But it's just not in play here, even if it could be in other cases.
Here's why: https://twitter.com/JennaEllisEsq/status/1332841628814471168?s=20
That seems to be Jenna's favorite phrase lately, possibly because that's the spot where she stopped reading the Constitution. But it's just not in play here, even if it could be in other cases.
Here's why: https://twitter.com/JennaEllisEsq/status/1332841628814471168?s=20
The bit that she seemed to be fixated on is this: "Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors..."
This is a law that was, everyone agrees, passed by the Legislature. It is the Manner that the Legislature directed.
This is a law that was, everyone agrees, passed by the Legislature. It is the Manner that the Legislature directed.
So there's no way to turn the Article II yelling into a SCOTUS case as far as this case is concerned.
And, to the extent that Jenna is yelling "Article II" in the hope that legislators will listen and try to do something to "take back" the power to appoint, they can't.
And, to the extent that Jenna is yelling "Article II" in the hope that legislators will listen and try to do something to "take back" the power to appoint, they can't.
We've been over this. A lot. The election did not fail just because Jenna, Rudy, and Donald didn't like the outcome. They might have failed; the election itself did not.
So while I'd be unsurprised to see these plaintiffs try to get SCOTUS to take the case, I'm just not seeing the jurisdictional hook they need.
I think this one is ready to be buried.
/fin
I think this one is ready to be buried.
/fin
