This is an excellent question, and it's something that I've thought about some over the last couple of months.

Honestly, I think the answer is that the rationales for these rulings are not likely to unreasonably harm meritorious progressive OR conservative challenges.

The first thing to keep in mind is that, by design, challenges to the outcomes of elections are supposed to be heard by state courts, through the process set out in state law.

That happened this year, and the majority of those challenges were heard on the merits.
The couple of cases where laches determined the outcome of state election challenges were ones where it was pretty clear that the challenges were brought in bad faith - where ballots cast in good faith in reliance on laws that had been in force for some time were challenged.
The PA challenge to Act 77 is one example. The challengers, some of whom had voted for passage of the bill, didn't make use of the initial, direct-to-PA-SCt challenge built into the law or sue pre-election; they waited until post-election.
The WI case is another. That one had a challenge to ballots cast using a form that had been in use for a literal decade.

Those are cases where laches is clear - particularly the prejudice element.
The federal cases were the ones with standing issues. The federal courts are supposed to have a limited role in state elections. That role is primarily in protecting the right to vote, and as many judges noted this year, these post-election cases weren't about the right to vote.
They were, instead, challenges based on the premise that "my vote should count, that other person's shouldn't." Finding a lack of individual voter standing for a challenge to thousands of other voters is very much in line with existing law.
The Electors Clause cases made new standing law, but that's a relatively novel theory that's never been the basis for such aggressive litigation.

The theory Trump was advancing was that any deviation from state election law could be litigated in federal courts.
I can understand why having that as an option would be something welcomed by some on the left, but I'm conservative enough (at least when it comes to federal jurisprudence) to think that would be a bad thing.
I don't think the federal courts should be ruling de novo on whether (eg) it violates Pennsylvania law to make observers stand 10 feet from tables instead of 6 feet, or on whether it violates Georgia law to make an election clerk get a second opinion on a signature question.
Meanwhile, there was considerable pre-election litigation (on many of the same questions) where there weren't issues because the right parties brought cases in the right court at the right time.
So I'm pretty much OK with the way the courts - especially federal - handled the post-election litigation this cycle.

More from Mike Dunford

Election Litigation Thread - Georgia:
OK, so since my attempt to sit back while Akiva does all the work of going through the latest proof that not only the pro se have fools for lawyers has backfired, let's take a stroll through the motion for injunctive relief.


At the start, I'd note that the motion does not appear to be going anywhere fast - despite the request that they made over 80 hours ago to have the motion heard within 48 hours.

The most recent docket entries are all routine start-of-case stuff.


Why isn't it going anywhere quickly? Allow me to direct your attention to something that my learned colleague Mr. Cohen said


Now I'm not a litigator, but if I had an emergency thing that absolutely had to be heard over a holiday weekend, I'd start by reading the relevant part of the local rules for the specific court in which I am filing my case.

In this case, this bit, in particular, seems relevant:


My next step, if I had any uncertainty at all, would be to find and use the court's after-hours emergency contact info. I might have to work some to find it, but it'll be there. Emergencies happen; there are procedures for them.

And then I'd do exactly what they tell me to do.

More from Government

Long thread: Because I couldn’t find anything comprehensive, I’m just going to post everything I’ve seen in the news/Twitter about Trump’s activities related to the Jan 6th insurrection. I think the timing & context of his actions/inactions will matter a lot for a senate trial.

12/12: The earlier DC protest over the electoral college vote during clearly inspired Jan 6th. On Dec 12th, he tweeted: “Wow! Thousands of people forming in Washington (D.C.) for Stop the Steal. Didn’t know about this, but I’ll be seeing them! #MAGA.”


12/19: Trump announces the Jan. 6th event by tweeting, “Big protest in D.C. on January 6th. Be there, will be wild!” Immediately, insurrectionists begin to discuss the “Wild Protest.” Just 2 days later, this UK political analyst predicts the violence


12/26-27: Trump announces his participation on Twitter. On Dec. 29, the FBI sends out a nationwide bulletin warning legislatures about attacks https://t.co/Lgl4yk5aO1


1/1: Trump tweets the time of his protest. Then he retweets “The calvary is coming” on Jan. 6!” Sounds like a war? About this time, the FBI begins visiting right wing extremists to tell them not to go--does the FBI tell the president? https://t.co/3OxnB2AHdr
The Government is making the same mistakes as it did in the first wave. Except with knowledge.

A thread.


The Government's strategy at the beginning of the pandemic was to 'cocoon' the vulnerable (e.g. those in care homes). This was a 'herd immunity' strategy. This interview is from


This strategy failed. It is impossible to 'cocoon' the vulnerable, as Covid is passed from younger people to older, more vulnerable people.

We can see this playing out through heatmaps. e.g. these heatmaps from the second


The Government then decided to change its strategy to 'preventing a second wave that overwhelms the NHS'. This was announced on 8 June in Parliament.

This is not the same as 'preventing a second wave'.

https://t.co/DPWiJbCKRm


The Academy of Medical Scientists published a report on 14 July 'Preparing for a Challenging Winter' commissioned by the Chief Scientific Adviser that set out what needed to be done in order to prevent a catastrophe over the winter
If you're curious what Trump's defense will look like, all you have to do is turn on Fox News. My latest at @mmfa

The tl;dr is that for years right-wing media have been excusing Trump's violent rhetoric by going, "Yes, but THE DEMOCRATS..." and then bending themselves into knots to pretend that Dems were calling for violence when they very, very clearly weren't.

And in fact, this predates Trump.

In 2008, Obama was talking about not backing down in the face of an ugly campaign. He said "If they bring a knife to the fight, we bring a gun."

https://t.co/i5YaQJsKop


That quote was from the movie The Untouchables. And there's no way anybody reading that quote in good faith could conclude that he was talking about actual guns and knives. But it became a big talking point on the

In 2018, Obama-era Attorney General Eric Holder was speaking to a group of Georgia Democrats about GOP voter suppression. He riffed on Michelle Obama's "When they go low, we go high" line from the 2016 DNC.

You May Also Like