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Akiva Cohen
@AkivaMCohen 3 years, 4 months ago 559 views

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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

This is a very long-winded way of saying "no, our dumbass equal protection claims DON'T give you any basis to reverse the election, the Defendant States are right"

And saying in a footnote "yes, our case is worthless unless we've sufficiently alleged intentional fraud" is a bold strategy when your complaint doesn't actually allege intentional fraud at all, let alone meet the heightened pleading requirements for that claim

The argument that Texas' real interest here is in having Pence as the President of the Senate to break ties doesn't leave dumbfuckistan no matter how many times you use it, Ken

As someone else noted, Texas has taken "saying the quiet part loud" and made it into an art form.

The argument here is that Texas' claim that other states' election procedures violated the constitution wasn't "ripe" until Texas was harmed by that violation, so Texas had to wait until after the election.

In other words, Texas is EXPRESSLY telling the Supreme Court that "the harm to us wasn't other states 'breaching the contract' by not following the Constitution. We were only harmed when they picked a candidate we don't like"

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Akiva Cohen
@AkivaMCohen

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

Akiva Cohen
@AkivaMCohen

OK, let's start talking about the House's 80 page brief on impeachment. It really is an incredibly well-done piece of work. There are some things I'd do differently and some pieces I didn't love, but overall, it's very very good.

Again - this thread will happen in fits and starts. I'm swamped at work and this will come in 10-15 minute chunks as I take a break

Let's start by taking a look at the table of contents. After a 4-page intro (that's relatively long, don't love it), the brief spends a solid 30 pages walking through the facts underlying the impeachment - and, the subheadings tell us, tying in Trump's general refusal to accept

the election results with everything that followed. This is a strong rhetorical approach, but it comes with dangers: the President not only had a legal right to contest the election results, but the GOP Senators pretty much all backed that right, strongly.

It's going to be important to thread a needle of saying "this set the stage for what came after" without putting yourself in a place where you're trying to convince the Senate that the challenges themselves were impeachable. That won't fly

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Akiva Cohen
@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

Akiva Cohen
@AkivaMCohen

In the cold light of morning, I'm still completely amazed by the legal belly flop that @ThomasMoreSoc filed in the DC District Court. It's the legal equivalent of watching the butt fumble, live

EVERYTHING you could possibly get wrong in a complaint, they managed

Start with the plaintiffs. The ONLY claims in the lawsuit are that the Constitution gives state legislatures the right to set the manner of elections, which they have allegedly (we'll get to this insanity) failed to do.

There's oodles of caselaw saying "since that's a right of the state legislature, only state legislatures, as a body, can bring such a claim"

Are the plaintiffs state legislatures?

https://t.co/KJGEvm8Owp

OK, what about the Defendants? They've sued Defendants from, IIRC, five states (GA, PA, WI, MI, AZ) based on claims that the State Legislatures there didn't pass election rules that the plaintiffs insist the Constitution requires (I promise, we'll get there).

Akiva Cohen
@AkivaMCohen

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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Entering 2021, our hearts are already broken.

That's exactly why we're ready to fight the good fight

And let me say this WADR in response to understandably heartbroken, frustrated and passionate people suggesting that I'm an easy touch, a RINO, naive, or insufficiently dedicated to conservatism: >

These remarks come up not only in response to my video saying that we must remember and live by the principles we say we're fighting for, but to my tweets saying that Lin Wood has lost touch with reality or that John Roberts is not being blackmailed. >

I've been a conservative activist since I was a teenager. The announcements for conservative events I was running were torn off the walls at Princeton in the 80's. Interviewers at law firms recommended that I not be extended an offer because the Federalist Society was Nazis. >

More recently I left one law firm partnership after being told I could not represent the Gab social media platform after it the representation been approved up and down the org chart and on the eve of filing.

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