Hours ago, I was skeptical of the legal claims in Anderson v. Griswold, the Section 3 challenge filed in state court in Colorado. Now I can be skeptical of Donald Trump’s effort to remove the case to federal court.
First, Trump takes advantage of “snap removal,” which allows a party to remove a case to federal court without the consent of all other defendants (here, Colorado Secretary of State Jena Griswold) if those parties have not yet been “served.” Otherwise, if Griswold wanted the case to remain in state court, the case could remain in state court. UPDATE: In a response, plaintiffs dispute that the removal took place before service. So there’s some dispute of timing.
Second, Trump has a viable (but still long shot) basis for asserting jurisdiction under Section 1331. As first-year law students learn, typically a federal court only has jurisdiction if the complaint on its face has a federal “cause of action.” Here, however, there are only state causes of action. But Trump invokes an exception, or briefly summarized as the rare cases where a state cause of action includes a “substantial” federal question. As the Supreme Court has said, “substantial” is a term of art in the courts. “As our past cases show, however, it is not enough that the federal issue be significant to the particular parties in the immediate suit; that will always be true when the state claim ‘necessarily raise[s]’ a disputed federal issue, as Grable separately requires. The substantiality inquiry under Grable looks instead to the importance of the issue to the federal system as a whole.” It’s possible–not a great possibility, but at least a viable one–that Trump fits this rare exception.
Third, however, I think Trump will likely flop what’s been described Professors Zachary Clopton and Alexandra Lahav as “fraudulent removal.” That is, litigants who remove to federal court then immediately move to dismiss for lack of jurisdiction see their cases sent back to state court. Those professors advocate for tools for district courts to discourage or penalize this bad behavior, which can be costly and dilatory.
If Trump, as seems likely, moves to dismiss the case for lack of jurisdiction because voters do not have Article III standing to bring the claim, the case will be sent back to state court. And we’ve seen, and will see, federal courts toss lawsuits for lack of standing if voters bring claims, voters with generalized grievances undifferentiated from the general public.
And if that’s the case, the federal court will likely send the case back to state court. So I think while Trump may temporarily pause the case here in federal court, I don’t think it will stay there very long