I've finished literally walking off the worst of my initial shock at the blast of dumbness that is this lawsuit. Let's dive into the weeds.

I already skimmed @AkivaMCohen's thread. Like him and, well, every other real lawyer to look at this, I agree that the case is a loser. https://twitter.com/rickhasen/status/1343585894377242624

That said, I do disagree with him on one minor point this time, regarding the interpretation of the 12th Amendment, but it's anything but outcome-determinative. (I'll get to that later.)

This is a strange group of plaintiffs - looks like the dumbest man in Congress, the second-most disgraceful Republican Party State Chair in America, and a bunch of semi-randos. All of the above almost certainly lack standing to bring this case.

(Kelli Ward, although a wannabe authoritarian with no respect for the Constitution, the Republic, or herself, is cannot be the most disgraceful Republican State Chair; the Texas Republicans have a literal war criminal running their show.)

There is some scholarly dispute over whether there are Constitutional issues with the Electoral Count Act, but there's zero chance that these plaintiffs have standing to bring the case - and a very chance that it's a non-justiciable political question that no court can resolve.

For the nonlawyers:
The political question doctrine is a bit hard to explain but it basically boils down to this: some questions about how the country works have to be dealt with by the political branches of our government (Congress and the President).

When such a question arises, the federal courts nope all the way out. No matter who brings the case or how important the issue may be, they won't step in. The reasons for this are rooted in the separation of powers - courts don't interfere in things that aren't their business.

One of the things that courts look to for this is whether the question is "textually committed" to another branch. I think it's likely that the courts will hold that the 12th Amendment commits figuring out electoral disputes to Congress, not the federal courts.

This paragraph makes it clear that this is a last-second desperation play to get to the 12th Amendment's contingent election procedure.

It will fail, for all the reasons.

This simply isn't true. The statute gives the State's Executive no power to appoint electors. 3 USC 6 requires the State's Executive to certify that the electors were appointed in accordance with state law - a very different thing.

(And that provision is probably there, given the age of the statute, because the governor is the one who gets to wield a state's official seal.)

This is simply an outright lie. It's sanctionable.

But so is so much else that these skidmarks have done.

Lord, so many just outright lies to unpack here.

1: No, you insane assclowns haven't "cast Arizona's electoral votes" and you should damn well be sanctioned for making that claim in a federal filing.

2: No, doing cosplay in the building isn't an endorsement.

3: No, the Governor and Secretary of State of Arizona did not "appoint" a competing slate of electors. They confirmed that the *people of Arizona* **VOTED** for the electors who cast the actual electoral votes.

I could go on, but seriously just fuck these people.

And this, right here, is why the case is a nonjusticiable political question. Congress is going to convene. Congress is going to count. And Congress - not the Courts - gets to determine how that works.

Actually, the relevant facts appear to damn well be in dispute if you weapons-grade dingleberries are claiming that a pack of cosplaying treasonweasels are legitimate electors with the approval of their state legislatures.

Putting the relevant "facts" in a footnote doesn't hide them well. The highlighted one is certainly disputed. Also disputable: the relevance of "legislators" (as opposed to "The Legislature") "contesting" certification.

You can keep saying that the facts aren't in dispute, Louie. You might even be stupid enough to believe this (I will concede that there is a considerable body of supporting evidence there). It's still kind of wrong.

The only reason it's "kind of wrong" instead of totally wrong is because the claim that there are competing slates is an absolute, indisputable lie - but it's one that Louie and the Treasonweaseling Arizonans keep presenting.

One picture in this Tweet is a thing that Louie and the Loonies said.

The other is the entire docket in this case as of 5 minutes ago. See the issue?

Oh, almost forgot in my haste to run from the dumbness:

Louie is claiming that it's relevant that he and maybe some Senator are planning to object. But the objection process is set out in the exact same section of law that Louie is claiming is unconstitutional.

83 hours. Just 83 more hours. I can survive that long.

They are literally asking the court to *SIMULTANEOUSLY* tell Pence that:
1: Pence has complete, 100% authority in how to determine which electoral votes to count; and
2: Pence absolutely must totally ignore the Electoral Count Act.

This is skullblastingly asinine.

OK, now we get to the fun part.

Here's where we can talk about:
1: Why this isn't what the 12th Amendment says;
2: What Pence gets to do;
and, as a bonus;
3: Why I disagree with Akiva on point 2.

Here's the 12th, with the relevant part highlighted.

Nothing here:
1: Says Pence gets to decide jack;
2: Says a single word about objections to electors;
3: Says a majority of 270 votes.

In fact, the Insane Assclown Posse are 0/3 on this quiz - a total failure.

The 12th says that Pence opens the votes. It doesn't - and here's my disagreement with Akiva - say that Pence counts. I think the shift to passive voice is significant, and that counting is in the hands of Congress as a whole. https://twitter.com/AkivaMCohen/status/1343591129028169729?s=20

The lack of language regarding objections is clear. That leaves the "majority of 270" thing. That's not what the 12th says. It says "a majority of the whole number of electors appointed."

That's potentially relevant. If a slate is discarded, were those electors "appointed"?

That's not going to happen so it won't come up - but I think the answer is that they weren't appointed. The challenge would be on the grounds that their appointment was invalid, not that it was valid but their votes irregular.

Anyway, moving on...

They want to claim that the statute is invalid because it "nullifies and replaces" 12th Amendment rules which, as we've just seen, appear to primarily exist in the delusions of the plaintiffs.

Both of these statutory citations are hideously awful. The Rhenquist quote is a *concurrence* - it's not good law. And Smiley v Holm totally undercuts the whole "the legislature is 1,000% in charge of elections with nothing else" theory.

In Smiley, the court held that state legislatures act, for the purposes of the Article 1 Elections Clause, in the manner that the state's constitution provides for legislative enactments, veto power included. (285 US at 368.)

As for the rest of this bit, all I've got to say is that I really hoped that 2019 was going to be the year I'd have to deal with craptacularly bad legal reasoning emanating from Tyler, Texas. Nearly got through 2020 - less than 100 hours left.

Damnit, Louie.

Nothing noteworthy here except the identities of a pack of treasonweasels.

STATES HAVE ELECTORS. POLITICAL PARTIES DO NOT.

This should go without saying. Sadly, because Republicans have determined that only Republicans have the right to rule, it doesn't seem to be.

"Republican Presidential Electors" are simply not a thing. You are either the *STATE'S* elector or you are not an elector at all.

The Republican cosplaying treasonweasels are in the "not electors at all" basket.

Also, just because you got permission to meet in a building does not mean that the legislature tried to appoint you as electors. See Smiley v Holm, which Louie so helpfully cited for us, regarding the whole need to follow the state constitution when acting as a legislature.

And I love how they keep trying to claim that there was an endorsement in Michigan, when the "electors" didn't even get to meet in the building.

These electors, on the other hand, are actually electors and cast real electoral votes.

And, again, not competing slates. Because there's only one slate in each state. The legislatures aren't even trying to pretend otherwise, although some individuals who serve as legislators might be.

Guess what, fake Arizona Electors? You don't get to unilaterally decide that there was fraud and that the fraud you have unilaterally decided exists means you get to appoint yourselves to be in charge.

Especially when your own state courts told you to get hosed.

Guess what else, you antidemocratic pack of pondsucking authoritarians? A fake "Joint Resolution" has no legal weight - unless, of course, it's evidence that you're submitting fake documents or making false statements.

This is, of course, irrelevant - after all, if Louie gets his way, there's no longer an objection procedure.

1: The Republican Party should be burned to the ground and the ground salted for their newfound tendency to unironically cite the Epoch Times alone.

2: Still no competing slates, you spectacular asstrumpet.

3: If the votes from those states aren't counted, Louie seems to be assuming that the electors who cast those votes somehow still count as electors for the purposes of the number of electors appointed.

That's truly Gohmertian logic.

More reasonably, those electors wouldn't count as appointed - because had they been properly appointed there would be no basis for objecting to their votes.

There is no choice between the 12th Amendment and 3 USC 15. The statute provides procedures for determining which electors are legitimate - something that's not addressed in the Amendment at all. They're complementary, not conflicting.

But see that case Louie already cited for the manner in which State Legislatures can act - they must act in the manner that their state constitutions provide.

It's going to be interesting to see what they claim the Amendment says about settling disputes. Of course, this presumes that they actually bother to explain that point, which is probably a very unsafe assumption.

Lots of dumb here, too.
1: It's very hard to get from the text of an Amendment that says that the Vice President *shall* *open all* the certificates and the argument that the Vice President has "sole discretion to open and permit the counting."

In fact, the word "shall" is generally viewed, when used in contexts like this, as showing that there's a *lack* of discretion. Why? Because "shall" is the word we use to indicate mandatory things.

2: Nothing in the Amendment says a word about dispute resolution; the whole "Pence gets to do that unilaterally" thing is pure quod ego sic dico reasoning.

3: The argument that neither the 12th Amendment nor the Electoral Count Act provide for judicial review is correct, and why this case is not a matter for the courts to determine. The pathetic attempt to handwave that away in the footnote isn't going to work.

And this, of course, assumes that one political party can maintain power simply by having the Vice President unilaterally decide what the "real" will of the people is in any election.

These Republicans have gone full fascist.

This is just plain damn dumb. The Electoral Count Act does not one thing that conflicts with the contingent election procedures; it's there to deal with the need to determine if there's a need to get to the contingent election procedures.

Dangit. I think I forked the thread a couple of times. Picks up here. https://twitter.com/questauthority/status/1343650896505430019?s=20