“There is some risk that some of these decisions made in post-election litigation could be bad for progressive plaintiffs in the future if you have courts that choose to extend some of these doctrines to pre-election challenges.” said Jon Greenbaum, chief counsel for the Lawyers’ Committee on Civil Rights Under the Act. “There is some danger in that.”
The judges have dismissed almost all of the roughly 60 lawsuits filed by the Trump campaign and its supporters on various grounds, and in many cases, individual cases have been dismissed for various reasons. Some judges said the Trump campaign had no legal basis to challenge the voting process. Others said Trump voters or individual voters have no reputation.
Many cases have been dismissed for laughing – a principle of law that precludes early filing. Others have been declared in dispute or excluded by ongoing state-level litigation. At least two lawsuits violated the eleventh amendment – the constitutional provision limiting litigation in federal courts against states and civil servants.
“The Trump campaign and its allies did not work with the most experienced lawyers,” said Justin Levitt, a professor at Loyola Law School. “They weren’t paying close attention because, to their surprise, they suddenly found out that the courthouse doors are pretty narrow. They just open a crack.”
Virtually every decision today is considered a precedent for Republicans or civil servants to use against Democrats or civil rights groups in the endless legal wars over the US electoral system. Lawyers handling such cases have no doubt that the turning point is coming, although they differ in importance.
“The decisions about standing will be important later. They will make it more difficult for individual voters to face these challenges, ”said Republican electoral attorney Jason Torchinsky. “We have also seen that the federal judiciary is very skeptical of the challenges of properly enacted laws. This will make it more difficult for the left or the right to question electoral laws.”
As a civil rights attorney constantly looking for creative ways to file legal complaints in court, Greenbaum acknowledged that he typically doesn’t celebrate judges who decide litigation is not allowed to hear their cases.
“I’m usually not a huge fan of standing attacks as we usually try to establish standing,” he said.
Chief Architect of Democrats’ Legal Strategy Marc Elias said he doesn’t think the Trump cases had much of an impact on the franchise as the lawsuits were obviously unfounded.
“Those weren’t close calls,” Elias said of the decisions that closed the cases. “There weren’t any cases that posed tough questions when the court had to draw a hard line.”
Elias, a partner in the Perkins Coie law firm, added that he was “not overly concerned” that the cases had affected the future ability of genuinely injured voters and groups to bring lawsuits. “Most of these cases were a caricature of a real proxy lawsuit,” he said. “You didn’t stamp out the carefully drawn lines of the standing teaching. You pretty much colored outside of the lines.”
Some judges also used another basis to ditch the Trump lawsuits – finding the allegations too speculative to proceed. These types of layoffs worry many left-wing attorneys because they refuse judicial discoveries, such as subpoenas and depositions, in cases where litigants lack details of how they were betrayed or injured.
“I have concerns about the extent to which it has become more difficult to gain access to justice, and I think some of these voting decisions were based on a doctrine that was used to restrict access to justice,” said Alexander Reinert, professor at the Cardozo School of Law from Yeshiva University. But he added, “I don’t think any systemic damage has been done that hasn’t been done in other areas. I don’t think any of the cases exceeded the law.”
Some attorneys warned that it is too early to give a final verdict on the Trump-related lawsuits as the U.S. Supreme Court may still take up a pre-election pre-election dispute involving state courts to impose mood-related rules that contradicts or goes beyond what a state legislature has dictated. Trump is trying to intervene in this case, which was filed by senators from the GOP state and which could affect voting processes across the country if the Supreme Court so wishes.
The reluctance of some proponents of voting rights to the crowd of Trump defeats highlights another curious aspect of this particular chapter in the election wars: a role reversal where Democrats and their allies tried to negotiate the GOP cases out of court while Trump’s legal team and his own Supporters strove to adopt arguments that Liberal Civil Rights Forces have long pursued in the face of stiff Republican opposition.
The head-turning shift was clearly seen last month during arguments before a federal judge in Atlanta over the GOP’s efforts to enforce a more sophisticated postal voting signature-matching process in the January 5 Senate runoff election.
In the run-up to the November election, Republicans pushed for the strict enforcement of a legal theory called the Purcell Principle – a line adopted by the Colonel when Democrats and supporters of voting rights urged the courts to force more adjustments related to Covid-19 in the voting process. prevent federal judges from making changes to electoral rules in the days or weeks prior to the vote.
However, during the December 17 court session in Atlanta, the GOP’s attorneys advocated a minimalist take on Purcell, insisting that it was not an insurmountable obstacle to changing signature verification procedures in elections that already include postal voting and early voting occur.
“The last time I checked, Purcell wasn’t one of the first 14 amendments to the United States Constitution,” said Michael Francisco of the McGuireWoods law firm, arguing that pre-election safety should not trump fundamental rights to have the voting carried out fairly. “It doesn’t mean you apologize for violating the Constitution just because you’re two weeks away from an election.”
And while civil rights lawyers and Democrats often bring lawsuits alleging that minority voters suffer from “vote dilution” because voters have more influence in one part of a state or because minority voters relocate to areas where they have little impact, a Democratic Party attorney called on the Atlanta federal judge to reject arguments that if local officials count absentee votes without carefully checking signatures, Republican votes are watered down.
Amanda Callais, also with Perkins Coie, disapproved of the term “watering down the votes” used by the GOP in the case, arguing that it was a “general complaint that standing cannot support”.
The judge in the lawsuit, Obama-appointed Eleanor Ross, dismissed her on persistent grounds alone. “The future injury theory is too speculative,” said Ross.
The rejection of the Trump and GOP-initiated cases is in line with a decade-long trend often pushed by lawyers and judges of conservative federal society to crack down on perceptions that federal judges took sweeping decisions in the 1960s and 1970s in cases where the constitution lacked a solid foundation.
These Conservatives advocate a narrow view of reputation – they claim that lawsuits in federal courts should only be brought by litigants who have been directly harmed by government conduct and should not be used to provide advice on the legality of various government policies or actions to catch up.
For his part, Trump appears to have no clue of the legal principles and is stunned by his loss.
“The Supreme Court had no interest in the merits of the largest electoral fraud ever committed in the United States. All they were interested in is “standing,” which makes it very difficult for the President to bring a case on the matter. 75,000,000 votes! “Trump complained on Twitter.
Trump’s spontaneous rejection of the perennial problem – the kind of minor thing that could spark a brawl at a Federal Society Congress – shows he lacks a basic understanding of the core principles extolled by the Conservative Judges he has nominated.
“Obviously, Trump doesn’t have a very deep understanding of many of the things he tweets about, and I think the doctrine stands least of all,” said Jameel Jaffer of the Knight First Amendment Institute.
Jaffer, at the end of a 2013 standing ruling by the Supreme Court over the National Security Agency’s surveillance programs, was tempted to find wisdom in Trump’s tweet – before reversing course.
“There is a core of truth in what he says … No. What should I say? I give him too much credit,” said Jaffer. “He only cares that he loses and he has no idea what he’s talking about.”
The Trump election process also created some unusual ideological bedfellows, as liberal professors and litigators sometimes praised conservative lawyers, whom they rarely agree with.
One of the key decisions that sparked the Trump-related litigation was a federal appeals court opinion last month dismissing a lawsuit by well-known Georgian attorney Lin Wood. The judgment was drafted by William Pryor, who for years was seen as the most conservative representative at the Bundesbank.
Many, who welcomed Trump’s legal process, said the outpouring of joy in their circles reflected less an affirmation of the courts’ increasingly miserable approach to voting disputes than satisfaction that the restrictive rubric was applied evenly – and not changed to one achieve certain political outcome.
“The cheers were a bit constitutional, but I don’t think they are actually cheering on the substance,” Levitt said.
“Some people have got into this situation thinking that judges are political actors and that they vote according to their ideological priorities,” added Reinert. “But the judges mostly didn’t. It’s a refreshing reminder of what’s different about the judiciary. ”