And it starts out strong.
Good morning, all. There's a little bit of news out of Michigan already this morning - it looks like Judge Parker wanted to start the work week this week with unnecessary and stupid distractions cleared away.
So she dismissed the MI Kraken tentacle sometime after midnight.
Sorry. I'm tweeting without caffeine and it shows. The order rejects the injunction, but it doesn't dismiss the case (yet). Skimming ahead, that appears a foregone conclusion, but technically the case isn't dismissed.
"Benchslap" is an official term of art, and is defined in Black's Law Dictionary. See below.
On this court's reading, all the Kraken suits should be done and dismissed on these grounds, I think.
And that there is prejudice to the defendants. So the plaintiffs also lose on laches.
Abstention is a doctrine where federal courts decline to rule in a case even if they otherwise could to give the state courts a chance to weigh in on the matter. There are a few variants. It's technical; I'm going to skip past most of it.
There's no standing for the equal protection claim. There's also no standing for the Elections Clause and Electors Clause claims.
So - for those keeping score:
The defendants lose because: 11th Amendment, mootness, laches, abstention, and standing.
With that out of the way, it's time to look at the merits of the request for injunctive relief.
And, as most of the lawyers weighing in on these cases have pointed out, federal courts Do Not Like theories that would make every violation of the law a federal matter.
This was a "you lose for all the reasons" ruling. The case may technically not be buried, but it's a zombie at this point - all that's left is to finish it off.
https://t.co/gMyu2IyODj
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 https://t.co/KAgZK8NYPt
— Akiva Cohen (@AkivaMCohen) December 7, 2020
More from Mike Dunford
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.
Honestly, I think the answer is that the rationales for these rulings are not likely to unreasonably harm meritorious progressive OR conservative challenges.
Any merit to the notion that the rationales for some of these rulings will harm progressive challenges in future elections?
— Andrew Broering (@AndrewBroering) January 3, 2021
One says laches, another moot, another standing, sometimes with almost the same type of plaintiff.
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.
Election Litigation Update: DC - the "let's sue the Electoral College" case.
This is a bit surprising, given that as of last time I checked nobody had been served and no appearance had been entered. I suspect it's an effort to make sure the case isn't "pending" on the 6th.
And, sure enough, still no proof of service on ANY defendant, still no appearance from defense counsel. And this is denying the motion for preliminary injunction but does NOT dismiss the case - which is potentially ominous for plaintiff's counsel.
This isn't a "happy judge" kind of first paragraph. Not even a little bit. Nope.
Y'all, this isn't even directed within a few hundred miles of my direction and I sill just instinctively checked to make sure that there's room for me to hide under my desk if I have to - this is a very not happy, very federal, very judge tone.
Also - the judge just outright said there's a bunch of reasons for dismissal. And not in "might be" terms. In definite fact ones. But the case isn't dismissed yet.
If I was plaintiffs counsel, I'd definitely be clearing under my desk right now, and possibly also my underwear.
This is a bit surprising, given that as of last time I checked nobody had been served and no appearance had been entered. I suspect it's an effort to make sure the case isn't "pending" on the 6th.
Link: https://t.co/oOJZD1F4x2
— Brad Heath (@bradheath) January 4, 2021
And, sure enough, still no proof of service on ANY defendant, still no appearance from defense counsel. And this is denying the motion for preliminary injunction but does NOT dismiss the case - which is potentially ominous for plaintiff's counsel.
This isn't a "happy judge" kind of first paragraph. Not even a little bit. Nope.
Y'all, this isn't even directed within a few hundred miles of my direction and I sill just instinctively checked to make sure that there's room for me to hide under my desk if I have to - this is a very not happy, very federal, very judge tone.
Also - the judge just outright said there's a bunch of reasons for dismissal. And not in "might be" terms. In definite fact ones. But the case isn't dismissed yet.
If I was plaintiffs counsel, I'd definitely be clearing under my desk right now, and possibly also my underwear.
