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
Category Archives: Supreme Court
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
Ilya Somin at Volokh: Yesterday, the state of Texas filed a lawsuit essentially asking the Supreme Court to reverse the outcome of the presidential election in four key swing states—Georgia, Michigan, Pennsylvania, and Wisconsin, thereby potentially giving Donald Trump a … Continue reading
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
Here’s the docket. [corrected link] Trump tweeted that he’s intervened and sought to distance himself from the unanimous loss at the Supreme Court yesterday by Rep. Kelly. I explained here and to the NY Times why the Texas lawsuit will … Continue reading
Adam Liptak for the NYT: The Supreme Court on Tuesday refused a long-shot request from Pennsylvania Republicans to overturn Joseph R. Biden Jr.’s victory in the state, delivering an unmistakable rebuke to President Trump in the forum on which he … Continue reading
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
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
You can find the brief here. It begins: Petitioners ask this Court to undertake one of the most dramatic, disruptiveinvocations of judicial power in the history of the Republic. No court has ever issued an order nullifying a governor’s certification … Continue reading
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
This brief will get attention at the Court. See especially the discussion at pages 9-11. … Continue reading
Via Bob Barnes, comes news that Justice Alito had moved the date for the response to Rep. Kelly’s request for emergency relief from Dec. 9 to Dec. 8. I had noted in an earlier post that Justice Alito had initially … Continue reading
The Court had invited the views of the Solicitor General about whether or not it should take the case, and now the office has filed this brief. It would not surprise me to see the Biden Administration taking a contrary … Continue reading
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
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
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
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
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
Michael Wines for the NYT: On Monday, the Supreme Court heard arguments on a question that goes to the heart of American democracy: Must the government count everyone living in the country, citizens or not, in the census totals that … Continue reading
PA Brief. PA Dems’ Brief. This is the case involving the PA Supreme Court’s decision to accept ballots arriving up to three days after election day. PA Republicans claim this violates the right of the state legislature to set the … Continue reading
Adam Liptak for the NYT: A skeptical Supreme Court on Monday reacted with frustration and some confusion to President Trump’s plan to exclude unauthorized immigrants from the calculations used to allocate seats in the House.While there was some discussion about whether the … Continue reading
In progress here. … Continue reading
David Gans for Slate. … Continue reading
Bloomberg Law: President-elect Joe Biden’s top lawyer at the Supreme Court may have no choice but to change the government’s position in an election dispute out of Arizona, the sort of pivot that is awkward for lawyers and irritates the … Continue reading
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
Bob Barnes for WaPo: Has the Supreme Court hit the pause button on all things President Trump?The justices for more than three weeks have been holding on to the president’s last-ditch plea to shield his private financial records from Manhattan’s … Continue reading
This is not a surprise at all and I was always mystified by anyone who thought this Court would agree to hear a campaign finance case to make things more regulatory. The trend is decidedly in the opposite direction. … Continue reading
Nina Totenberg at NPR: “Unless something new happens, I don’t see a viable path for Trump to litigate his way out of an Electoral College loss,” says election law expert Richard Hasen, of the University of California, Irvine.Florida State University … Continue reading
Important to note that the presidency is not the only thing on the line in the dispute over late arriving mailed ballots in Pennsylvania. From the Democrats’ brief: the ballots contain votes for state races that are not implicated in … Continue reading
You can find the order directed to county election boards here. The order follows the PA GOP telling Justice Alito that not all counties had indicated that they would follow the guidance as well as tweaks that the PA Secretary … Continue reading
Ariane de Vogue: Lawyers for Pennsylvania Republicans are asking the US Supreme Court to order the state to not take any action on any mail-in ballots received after Election Day, November 3.The Pennsylvania secretary of state has already ordered any … Continue reading
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
Ned Foley WaPo oped: President Trump can rail as much as he likes, but he can’t stop the counting of valid votes. And while he is threatening to race to the Supreme Court to overturn any result against him, that, … Continue reading
ProPublica reports. … Continue reading
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
David Kaplan NYT oped. … Continue reading
New Jost on Justice. … Continue reading
Larry Tribe and Steve Mazie Boston Globe oped. … Continue reading
So reports Ariane de Vogue. Just in out of Minnesota: “In consultation with the Minnesota Attorney General’s Office, we have decided not to seek a stay of the 8th Circuit decision at the US Supreme Court. We disagree with the … Continue reading
He did not refer it to the full Court. … Continue reading
Justin here. I’m tracking the litigation over election issues related to COVID-19 … and the list of cases just hit 325. (The Stanford-MIT Healthy Elections Project also has a really useful sortable database of these cases, with more info. And … Continue reading
Adam Liptak for the NYT: In a little over a week, the Supreme Court issued five sets of orders in election cases. In three of them, Democrats prevailed.Chief Justice John G. Roberts Jr. wrote an opinion in only one of the cases, … Continue reading
Ned Foley in WaPo: The center holds at the Supreme Court in voting cases, at least for now, and that is a very good thing.In rulings from the presidential battlegrounds of Wisconsin, Pennsylvania and North Carolina, Chief Justice John G. Roberts … Continue reading
You can watch here: … Continue reading
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
Adam Liptak with a cogent recap of yesterday’s action. You can find my analyses from yesterday of the PA and NC rulings. … Continue reading
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
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
Adam Liptak in the NYT. … Continue reading
NYT: The Supreme Court decision on Monday barring the counting of mail-in ballots in Wisconsin that arrive after Election Day was not a surprise for many Democrats, who had pressed for it but expected to lose.But a concurring opinion by … Continue reading