The narrow window in which legal disputes may be resolved following a presidential election weighs heavily in favor of applying the “capable of repetition” doctrine to resolve issues capable of reoccurring. Otherwise, non-legislative state actors may be emboldened in future presidential elections to make even more last-minute changes to state election laws contrary to the Electors Clause than occurred in this year’s election.
Second, Petitioner clearly satisfies the element that there is a reasonable expectation he may in the future be subject to the same action. There is no legal impediment to him running for re-election.4 National media and political pundits have highlighted Petitioner as a potential presidential candidate in 2024 and report that he would be the GOP frontrunner should he run again. This reporting is objectively based upon polling data and Petitioner’s access to the financial resources needed to run. 5 Therefore, Petitioner easily satisfies the second element of the capable of repetition standard.
Significantly, his petition raises important issues capable of repetition which could be critical in a subsequent presidential election….
Footnote 5 reads:
See, e.g., “Inauguration Day isn’t the end of the Trump era. It’s just the beginning.” USA Today, January 17, 2021 (“President Donald Trump would enjoy an almost certain early favorite status in an open 2024 Republican primary”), available at: https://www.usatoday.com/story/news/politics/2021/01/17/paleologos-polltrump-era-just-getting-started/4196345001/; “It’s still Trump’s party,” Axios, January 14, 2020 (“57% of Republicans said Trump should be the 2024 GOP candidate . . .[t]hat’s a formidable base for Trump, who also controls the $150 million+ he has raised for his super PAC since the election”) available at: https://www.axios.com/trump-republicans-mpeachment-support-10c11b10-2149-406fab6a-4a94db8d1226.html.