Must-read Lisa Manheim: “Texas can’t block votes cast in other states. Absurdly, it’s trying.”

Lisa Manheim in WaPo: The litigation is legally incoherent, factually untethered and based on theories of remedy that fundamentally misunderstand the electoral process. At the core, it is an uninspired retread of the many state-level claims that already have imploded since Nov. … Continue reading

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It Appears That Trump’s Motion to Intervene in Bogus Texas Lawsuit to Overturn the Result of the Election Was Ghost-Written By Lawyer for Texas

The Justices will not be amused: So the John Eastman brief for Trump was ghost-written by the guy who drafted Texas's brief that the Eastman brief supports?Oh my.The Supreme Court will not appreciate the sock-puppetry, especially in a case with … Continue reading

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Should Justice Barrett Have Recused Herself in the Rep. Kelly Emergency Petition Seeking to Throw Out Pennsylvania’s Electoral College Votes? What About in the Pending Texas Case?

I raise this as a question, as I am not an expert in judicial ethics. But I did think (and argued) that Justice Barrett should recuse in any Trump-related election litigation. Trump was not a party in the ridiculous Kelly … Continue reading

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Breaking: Without Noted Dissent, Supreme Court Denies Relief in Rep. Kelly PA Voting Case That Sought to Disenfranchise State’s Voters (This is The One I Said Had the Dumbest SCOTUS Argument I’ve Ever Seen)

Justice Alito referred it to the whole Court. Earlier: Perhaps the Dumbest Argument Ever Made in Emergency Petition to the Supreme Court Appears in Pennsylvania Election Case Anyone who thought that the Supreme Court was going to save Trump in … Continue reading

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Texas Asks Supreme Court for Permission to Sue Georgia, Pennsylvania, Michigan, and Wisconsin Over How They Conducted the Election, To Disenfranchise Voters in These States and Let State Legislators Choose Electors. It Won’t Work

I may need to take back what I said about Rep. Kelly’s PA suit being the dumbest case I’ve ever seen filed on an emergency basis at the Supreme Court. This new one from the indicted Texas AG Ken Paxton … Continue reading

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Super Interesting: In Rep. Kelly’s Case Seeking to Overturn PA Results for President, Brief from PA Republican Party Does NOT Support Argument Election Should Be Overturned

This brief is so interesting. It does not even address the main argument made in Rep. Kelly’s brief that the PA Legislature acted unconstitutionally in passing its absentee voting law. I’ve explained it’s a nonsense argument, but it’s the one … Continue reading

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As Path to Overturn Pennsylvania Election Results Closes Completely, Trump Campaign Apparently Abandons Seeking Supreme Court Emergency Relief in Third Circuit Case

Philadelphia Inquirer: If its fate had not been abundantly clear already, President Donald Trump’s dream of having Pennsylvania’s GOP-controlled legislature overturn the state’s election results received what appeared to be its final death blows Thursday with a late-night order from … Continue reading

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Justice Alito Slow-Walks Rep. Kelly’s Pennsylvania Emergency Petition, Requiring a Response from the State on Dec. 9, After the Safe Harbor Deadline: What Does It All Mean?

Although it is not yet reflected on the docket, Justice Alito has reportedly set a deadline of December 9 for the state of PA to respond to Rep. Kelly’s petition seeking to nullify the vote in Pennsylvania (a petition I … Continue reading

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Rep. Kelly Has Apparently Withdrawn His Emergency Request for a SCOTUS Injunction to Reverse Pennsylvania Results, As He Awaits PA Supreme Court Ruling on Stay

From the opposition to the stay request filed in the PA Supreme Court: Once again, Petitioners are asking the courts to take expedited action in response to an emergency of Petitioners’ own making. This Court dismissed the Petition for Review … Continue reading

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Unanimous 4th Circuit Panel Applies “Presumption of Good Faith” in Upholding 2018 North Carolina Voter ID Law, Despite Finding That 2013 Voter ID Law Was Passed with Racially Discriminatory Intent

You can find the 29-page opinion at this link (via WRAL). The opinion leans heavily on the Supreme Court’s use of a presumption of legislative good faith in Abbott, despite an earlier history of racially discriminatory conduct. I recently wrote … Continue reading

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“Federal Court Review of State Court Interpretations of State Laws that Regulate Federal Elections: Debunking the ‘Independent State Legislature’ Notion Once and for all, and Keeping Federal Judges to Their Important but Limited Lanes”

Vik Amar has posted this draft on SSRN. Here is the abstract: In the weeks leading up to and following Election Day 2020, Republican litigants, taking cues from a minority group of Justices, asked federal courts to undo state election … Continue reading

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My New New York Times Oped Argues We Should Worry Less About Whether Trump Can Steal the Election (He Can’t); Worry More About the Damage Being Done to Voting Rights and the Legitimacy of our Election System and Democracy

I have written this piece for the NY Times. It begins: Even as the campaign lawsuits brought by President Trump over the 2020 election enter their death throes, many people continue to worry that Mr. Trump will find three Republican legislatures … Continue reading

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Trump Campaign Says It Will Seek Recount in Wisconsin, Sues in Michigan to Temporarily Stop Counting, Stages Brooks Brother Type Event, and Intervenes in PA Case: What It All Means

There have been a number of developments since I posted this morning, Can Donald Trump Litigate His Way to Victory via the Supreme Court? Not Likely After networks called Wisconsin for Biden with about a 20,000 vote lead and counting … Continue reading

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Still Not Normal and Deeply Disturbing: President Trump Falsely States That Supreme Court Ruling on Pennsylvania Ballots Will Lead to Cheating and “will also induce violence in the streets”

Hidden behind a Twitter warning that “Some or all of the content shared in this Tweet is disputed and might be misleading about an election or other civic process,” President Trump tweeted the following: The Supreme Court decision on voting … Continue reading

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Supreme Court, With At Least 3 Justices Dissenting and No Participation by Justice Barrett, Rejects Remaining Challenge to North Carolina Ballot Extension Deadline

Given yesterday’s developments at the Supreme Court out of North Carolina, this result is expected. The same three Justices (Alito, Gorsuch, and Thomas) noted their dissents. From the Supreme Court press office: “Justice Barrett did not participate in the consideration … Continue reading

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Breaking and Analysis: Supreme Court, Over at Least 3 Dissents, Refuses to Roll Back North Carolina Extension Date for Receipt of Absentee Ballots [Updated headline]

You can find the Court’s order, along with Justice Gorsuch’s dissent, at this link. Justice Alito joined Gorsuch’s dissent; Justice Thomas noted his disagreement with the majority but did not sign the dissent. Justice Barrett again did not participate. The … Continue reading

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Pennsylvania Will Segregate Ballots Received After Election Day with SCOTUS Case Pending: Why This Was a Smart Move by the State, and Why This Doesn’t Solve the Reliance Problem or Standing Issue

As ELB readers well know, the Pennsylvania GOP has gone back to the Supreme Court seeking to reverse a state supreme court order which extended the deadline for receipt of absentee ballots from 8 pm on Election day until 5 … Continue reading

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