BC JUDGE
Saved by @Alex1Powell

So, quick rundown of the latest #Squidigation decision: It's very thorough; 36 pages of Judge Parker explaining that Powell and her merry band of fuckups lose for every conceivable reason

 First: 11th Amendment Immunity. Basically, states (and their officials) have sovereign immunity; you can't sue them in Federal Court except to the extent that they agree to be sued there. Quick thumbnail of the doctrine here
There are only 3 exceptions to this: 1) Congress says "you can sue your state for this"; 2) the state agrees to be sued; 3) Younger, a case that said "you can sue your state if you are just seeking an order saying 'stop violating my rights'"
In other words, if the state passes a law that says "no talking politics in public" you can sue for an order saying "that's unconstitutional and can't be enforced" but not for damages from having your 1A rights violated in the past
I'm sure you can see where this is going: Exceptions 1 and 2 don't apply; Congress didn't say "no sovereign immunity" when it passed 42 USC 1983 (the civil rights statute the plaintiffs sued under) and Michigan hasn't waived it. That leave Younger as the only remaining option
Shit, not Younger. Ex parte Young. (Younger is a different issue). Apologies
Anyway, Young doesn't apply, for two reasons: 1) it NEVER applies to state law claims (so the Plaintiffs' claims that Michigan violated its own election code are barred); 2) The Plaintiffs are asking for backwards looking relief ("decertify, etc") not an injunction against future
violations of their rights. So that exception isn't available, either.

Bottom line: The Plaintiffs have no ability to sue any of these defendants at all, so they lose.
Next, Judge Parker moves on to mootness: Even if they *could* sue these defendants, the court couldn't give the plaintiffs any relief, so the case is moot
Here's what the Plaintiffs asked for
The problem with all that? Before they bothered to sue, the results had already been certified, the certification passed to the Archivists, and the time set in Michigan law for requesting special elections (based on voting machine errors) or recounts had expired
For all of you nervous folks out there - and I know there are a lot of you - pay special attention to the footnote: There is no longer any legal avenue left for challenging Michigan's election results.

It's over.
The opinion then runs through why all of this means the case is moot; not gonna take you paragraph by paragraph but it quotes both the 11th Circuit's decision in Wood ("we cannot turn back the clock and create a world in which the 2020 election results are not certified") and
Wecht's concurrence in the PA Supreme Court case: "What are you idiots smoking, there's no legal mechanism for ignoring the vote, morons"

(I paraphrase)
So, our intrepid band of adventurers sued people who cannot be sued for relief that can't be granted. (Exactly the same as if they had sued Daenerys Targaryen and asked the Court for an order directing that they be awarded a dragon egg). But even if the court could ignore that...
They managed to file their lawsuits too late
By now, you're all familiar with the concept of laches, right? That if you sit on your hands and let the "bad thing" play out, when you could have stopped it earlier, and the delay harms people, the Court's not going to pay attention when you suddenly wake up and say "stop em!"
And oh boy did they ever file them late. Every aspect of their claim was late, especially its core; if you are going to sue about alleged software problems you claim have been discussed for a decade, do it *before* the fucking election
And, of COURSE the delay harmed the voters and defendants; we've now had an election and blown by Michigan's statutory deadlines for election challenges. Done.
But the Court isn't done yet. Even if they hadn't sued Santa for a real live baby Yoda, and even if they hadn't waited for after Christmas to file the suit, the Court *still* wouldn't hear it.

Why? Abstention
Abstention (I'll simplify) is a doctrine that basically says "look, Federal Courts, some things are better left to state courts. Where that's true, Federal Courts should dismiss the cases instead of hearing them.
There are a number of different situations where that comes into play, and the various abstention doctrines are known by the names of the cases that made them famous. Colorado River abstention - federal courts shouldn't take up issues already being litigated in a state court case
Burford abstention - federal courts can choose not to hear challenges to state administrative agency orders

Pullman abstention - don't assess the constitutionality of ambiguous state statutes until state courts have had an opportunity to interpret those statutes
Younger abstention (which is why Younger was on my mind earlier) - you can't hear a civil rights claim where the plaintiff is actively being prosecuted for the underlying conduct
Here, Colorado River applies, because there were state court cases challenging the election results. Detroit argued the Court should also abstain under Burford and Pullman, but Judge Parker was like "look, this is the fourth separate ground they lose on, one abstention is enough"

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Dear Texas: When your argument is that election procedures were adopted in violation of the Electors clause, the only evidence you need to "marshal" is "what election procedures were adopted and how"

You don't need weeks, a magnifying glass, and Melissa Carone


Also, why is there no other forum? You couldn't have sued in Federal court in Georgia or PA in advance of the election because ...?

Oh, right. No standing. That's still a problem


Also, Texas? I feel like you should take that up with ... Texas


I kind of feel like "look, what you meant by Purcell was let's just wait until after the election and then invalidate ALL the votes" isn't necessarily the *strongest* argument


Also, you don't just get to make up a new principle of constitutional and election law and just call it "a variant of" Purcell (or anything else).

You can tell it's made up by the total absence of any citation to ANY case, ANYWHERE, saying that
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Let's talk about this North Dakota attempt to legislate around Section 230 and create a civil right of action for users censored by social media sites. CC @mmasnick

Forget, for a moment, that this law, if it passed would immediately be deemed void as preempted by Section 230 (Federal law is supreme over state law where they conflict, and this would create an express conflict). This bill is a really good example of why this stuff is hard

Here's the key provision of the bill. The various highlighting on these versions shows areas we'll touch on


First of all, let's look at the last of those images. There's no question that this would target conduct immune under federal law - and, in fact, if 230 were repealed nobody could ever be liable under this law (since it only reaches immune conduct). So it's incredibly stupid.


But again, put that aside. Let's look at the substance.

First of all, who gets to decide whether content fits into these highlighted categories? Do they actually think that the government will get to decide what counts as "otherwise objectionable"?
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Goddamn it, Texas, I don't have time for this today.

Fine. Fine. A brief thread. (Yesterday I said I'd do a brief thread on the Michigan decision and finished an hour and a half later. Can't let this be that, today).

OK. Texas filed a motion for leave to file a complaint against PA, GA, MI and WI in the Supreme Court. Someone else can lawsplain to you how that works, or you can google the highlighted rules, but briefly, this is a thing they can theoretically do


There is a MASSIVE contradiction at the heart of this complaint, and its doomed for other reasons, too (standing, laches, abstention)

They have three theories for why they can sue:
1) Violation of the Electors Clause of the Constitution ("the Constitution gives state legislatures exclusive control of the manner of selecting electors and judicial action can't change it)
2) "Counties applied different rules"


And 3) "you didn't have as strict voter ID requirements as we'd like, and that's unconstitutional for reasons"

That's it. That's the case
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@AkivaMCohen
Somebody asked me about this idiotic "PenceCard 2: Electric Boogaloo" article, and people, just stop worrying about this stuff.

The conspiracy wing of the GOP is going to keep pumping out these "Ten Neat Tricks to steal an election [number 8 will shock you!]" articles straight through the inauguration. (Yes - don't expect this to stop after the electoral votes are counted)

None of it is real. None of it has any legal basis. It's fantasy written by fantasists for coping MAGA-ites who find reality just too painful to accept. Ignore it.

This particular flavor of wishcasting was written by Ted Noel. Unless there are two "Ted Noel"s writing nonsense for the American Thinker, Noel is a doctor, not a lawyer or scholar, who nevertheless writes about legal issues

This actually makes me feel a bit better, because the thought that a *lawyer* could think that Pence had "plenary power" to discard state election certificates for any reason he chose is - even after watching Wood, Powell, Kaardal, and the rest - somehow too hard to contemplate
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Looks like we need to spend some time talking about the Parler lolsuit against Amazon and why it's deader than a Mitch McConnell comedy special. They've brought three claims - antitrust, breach of contract, and tortious interference. None will survive. Here's why

Here's the meat of their intro: Amazon isn't being fair to us. They're holding us to a higher standard than Twitter - they say we allow violent content, but look what Twitter does!


There are a few problems with this approach. First, there's a factual problem: Twitter and Parler take very different approaches to moderation. Hell, *that's Parler's entire pitch.* So "we're the same as Twitter, why are you treating us different" isn't going to fly

ALSO, the hashtag was mostly people saying "these folks are calling to hang Mike


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