OK, #Squidigation fans, I think we need to talk about the n…

Not, I hope, Seth Abramson long. But will see.

I apologize in advance to my wife, who would very much prefer I be billing time (today's a light day, though) and to my assistant, to whom I owe some administrative stuff this will likely keep me from 😃

First, some background. Trump's suit essentially tries to Federalize the Wisconsin Supreme Court complaint his campaign filed, which we discussed here. https://t.co/a11AKAR92A

OK, #squidigation fans. This is a new Wisconsin case not filed by the Krake[n/d] team of Powell and Wood and NOT focusing on wild conspiracy theories. It's a competent and professional filing that raises things that would be real issues ... if you don't understand why they aren't https://t.co/ETvUiWV5du
— Akiva Cohen (@AkivaMCohen) December 1, 2020

If you haven't already, go read that thread. I'm not going to be re-doing the same analysis, and I'm not going to be cross-linking to that discussion as we go. (Sorry, I like you guys, and I see this as public service, but there are limits)

Also, @5DollarFeminist has a good stand-alone thread analyzing the new Federal complaint - it's worth reading as well, though some of the analysis will overlap. https://t.co/W6J0Qd9MRq

Every one of these Trump election suits is the same gobbledygook garbage barge:

FRAUD!

It coulda happened.

Well, no, we can't prove it.

But just to be safe, best let the gerrymandered legislature give us all the electoral votes!https://t.co/Z926668H05 pic.twitter.com/xGZsJKIO7Y
— Liz Dye (@5DollarFeminist) December 3, 2020

Last bit of preliminaries - we'll also be talking about the DNC's motion to intervene in that Wisconsin Supreme Court action, which you can find here.

https://t.co/2uHpWCtHXe

OK. Let's get to it.

First of all, note the plaintiff in the new Federal suit, and compare it to the plaintiffS in the Wisconsin suit

This is, to say the least, unusual. Working from memory, I assumed that Trump had not personally been a plaintiff in the Wisconsin suit and that he (rather than the campaign) was the Plaintiff in the federal suit to try to avoid an argument that he couldn't file 2 cases on the

same basic issue. But Trump was a plaintiff in Wisconsin, too. So that can't be it. And if so, why aren't the Campaign - and Pence - named plaintiffs here, too?

There have been reports that Pence wants out of this whole debacle. That may be particularly true for this case, which - at face value & as we'll talk about - would call into question every federal election in Wisconsin for years, including Ron Johnson's

https://t.co/8OGzc3wzWm

I'm not sure how the campaign is structured, but I would bet that there was strong pushback to this suit by Pence and that Pence basically said "you do what you want but don't put my name anywhere near this"

OK. Substance. The first clue we get as to the claims is in the "Jurisdiction" section, where you tell the Federal Court, which can only hear certain types of cases, why your case is one that it can consider.

Section 1983 is the civil rights act - he's alleging that the "violations" the complaint will identify infringed on Wisconites' right to vote.

Article 1, §4 is the Elections Clause: State legislatures get to set the "time, place, and manner" for Congressional elections

Article 2, § 1, Clause 4 is the Electors Clause: For *Presidential* elections, State legislatures get to set the "Manner" of choosing electors. (Congress gets to set the "Time").

The 14th Amendment will be a due process claim. Not sure how the 1st plays in - probably a right of association claim.

Next the complaint transitions to what it says is a summary of the wrongful acts in Wisconsin. "Ultra vires", btw, is latin for "beyond your authority" - essentially, that the person in question had no legal power to do what they did

Here's the complaint's general summary of the issues they allege:

1) Changing absentee/mail in ballot rules
2) Using drop-boxes
3) Counting ballots without poll watchers able to see
4) Messing with the certifications on mail-in ballots
5) "Permitting ballot tampering"

The complaint asks for an expedited schedule sufficient to let Trump get up to SCOTUS by 12/11. This is insane. He's asking for a schedule built to accommodate 3 levels of appeal in 10 days - after waiting A MONTH after the election to file the case

Page 9 of the complaint - paragraphs 37-41 basically set out the argument that courts cannot constrain state legislatures' exercise of its Constitutional right to set the "manner" of appointing electors.

But it goes further:

That last paragraph is critical to their claim: they will be arguing that *interpreting* state statutes governing presidential elections is a violation of the Elections and Electors clauses. That is very very wrong.

BTW, a side note: Donald J. Trump is not - unless I missed something that would have been very obvious - a candidate for the US House of Representatives or US Senate.

Nope, he was not

There are going to be standing issues with all his claims. But there isn't even the ghost of a shadow of the as-yet-unborn grandchild of a chance that Trump has standing to allege a violation of the *Elections* clause governing election of Senators and Representatives.

Any reference to claims under the Elections clause in this complaint is completely and utterly frivolous.

The next several pages of the Complaint (which is doubling as the President's brief in support of his motion for injunctive relief) are charitably described as A Trumpy Salute to Federalism, in support of the "Leave it to the Legislatures" argument

I'm not kidding.

Next, Trump pauses to explain to the Court that yeah, the Wisconsin state legislature probably knows about all the terrible stuff he's about to complain about, but it should let him bring these claims on its behalf anyway

This is basically an argument that the court should find he has prudential standing to raise these claims. If you remember from old threads, "prudential standing" basically means "even if you got harmed by person A's violation of person B's rights, we're not going to let you sue"

"Because those are person *B's* rights, not yours. If person B wants to sue, fine. And you can tag along. But you, on your own, without person B? No."

Here, Trump is arguing the Court should let *him* sue for the alleged violation of the Legislature's rights, even though the Wisconsin Legislature isn't (and, as we'll see, hasn't for years)

OK, minor mental health break to keep me from saying Iä! Iä! Myopsida fhtagn! (as someone suggested I might). Back to it

Finally, at paragraph 73, the complaint starts to set out what it says the problems were. First, on photo ID - paragraphs 73-82 go into the background: Wisconsin really wants voters to give ID

And now, finally, we get to the issue they want to raise: the "indefinitely confined" issue from the Wisconsin case.

I know I said I wasn't going to cross-link, but I'm realizing now that this will be hard to follow if I don't. So, if you need a refresher on what they alleged on this issue in the Wisconsin case (and why it's wrong), start here https://t.co/GDKg5SR66h

Next category: Absentee ballots from people who self-identified as "Indefinitely Confined"

This was the subject of prior litigation, Jefferson v. Dane County, when Dane County announced that voters counted as "Indefinitely Confined" under the governor's "Safe at Home" order
— Akiva Cohen (@AkivaMCohen) December 1, 2020

Just realized I linked y'all to the DNC's motion to intervene, not their actual brief, in the Wisconsin case. Here's that brief, which we're about to quote.

https://t.co/x7E1trrHrS

The DNC's brief points out what my thread did: that the Wisconsin Election Commission issued - and the Wisconsin Supreme Court expressly approved - guidance on the meaning of "indefinitely confined" that torpedos Trump's case

What is Trump to do? Obviously, he's about to lose in the Wisconsin Supreme Court, which already decided that issue. So he runs to Federal Court, and argues that the WEC and Wisconsin Supreme Court violated the constitution by putting out (and approving) this guidance

Here's their argument that the guidance doesn't comply with the Election Code

There are SEVERAL basic, fundamental problems with all of this.

First, Trump is *asking the Court to interpret the Wisconsin Election Code* in order to reach a conclusion that *nobody* can interpret the Wisconsin Election Code without violating the Constitution

Second, even if you get around that Mobius Strip of an argument, Trump is asking a Federal court to tell a State Supreme Court that the State Supreme Court is *wrong* in its interpretation of a STATE statute.

This ... is not a thing Federal courts can do.

No, I mean it's really really not. Not even SCOTUS.

Remember all that Federalism stuff Donny was waxing poetic about a few pages ago? This is part of it. State Supreme Courts are the ultimate arbiters of what State law *means*, in the same way that federal courts decide what federal law means

The Elections/Electors clause cases about things being exclusively committed to legislatures may mean that state constitutions can't constrain legislatures' choice of the "manner" of choosing electors (for example, if the state constitution said "every citizen can vote for prez"

And the state legislature decided to pass a law saying "the Legislature will directly appoint Presidential electors," the Supreme Court might find that law could not be defeated by the provision of the state constitution requiring a vote)

But what Trump is challenging here is NOT the State Supreme Court, or an executive branch official, saying "I know the Legislature wanted X, but we think NotX is better, let's do NotX"

This is the state supreme court exercising its core function of saying what the law passed by the Legislature *means*

Federal courts are prohibited from second-guessing that

Oh, and it gets better.

Because the Wisconsin Elections Commission? That's not an agency of Wisconsin's executive branch.

It was established *by statute* specifically to manage and administer *and interpret* Wisconsin elections and election law

So the WEC and its guidance, and interpretation of the Wisconsin Election Law, is *expressly* part of the "manner" in which the Wisconsin Legislature determined that Wisconsin would select presidential electors

And btw? Even if federal courts could look at this issue at all (again, they can't), the Legislature delegated interpretation and implementation of the Election Code to the Election Commission. That has implications under the Chevron Doctrine

Chevron was a 1984 Supreme Court case that basically found that where an agency is charged with enforcing a statute, courts MUST defer to the agency's reasonable interpretation of that statute.

Even if it thinks a different interpretation would be reasonable or better, the court must go by the agency's interpretation unless that interpretation is, to use a technical term, absolutely crazypants

OK, #Squidigation fans, I think we need to talk about the new Wisconsin suit Donald Trump filed - personally - in Federal Court last night. The suit is (as usual) meritless. But it's meritless in new and disturbing ways. This thread will be

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