Nevada judge tosses Trump campaign’s election challenge

Las Vegas Review-Journal ^ | December 4, 2020 | Rory Appleton

[Svartalfiar]

BTW, while I think you are correct that the statute of limitations on overturning an unconstitutional law is infinite, the SCPA rejected this challenge, not based on defense of statute of limitations, but based on defense of latches.
...
You are correct about the PASC opinion. When the defense of latches is established, the court does not look at the merits of the case.
This is how it should be. If the case is not live, any ruling on the merits is simply issuing an advisory opinion, which is legislating from the bench. This violates our Republican principles of separation of powers.

My understanding of laches is that it is used in cases where the facts or circumstances have changed: all of the witnesses died, the material in question has irrevocably changed, the case is no longer relevant, that law no longer applies, or something like that. A simple "too late because we say so" does NOT fall under a laches dismissal. A simple statue of limitations type of argument would not be encompassed by laches.


Also, we are arguing that PASC’s order extending the deadline was unconstitutional. But that is an argument, it has not been established. The counterpoint is: Constitution Article II mandates state legislators to pick electors. But under our Republican system, legislatures routinely delegate their powers to executive branch, (I can give examples later) and also, judicial branch is within its power to interpret state law.

True, but DID any of these States do that? Pretty sure all of the issues specifically went outside the Legislature, not through it. PA would be the one exception, but that would be a case of the Legislature limiting themselves (PA Constitution), thereby requiring a PA Constitution amendment to have done what they did. While both are the 'will of the Legislature', the will in the State Constitution outweighs the will in a simple law.


First, I disagree that there is “No Constitutional Right to vote.” The Constitution originally granted states broad rights in running elections. But in 20th Century, we enacted 4 Constitutional Amendments protecting citizens’ right to vote. Plus, there is a whole body of law case law recognizing that Constitutional right.

Sure, those rights to vote are protected in situations were the citizenry has a vote. House Reps, Senators (now), and Pres electors where the State has determined the popular election is the method, all of those have to follow the rules on voting. But if the State decides to pick the electors themselves, there is no vote for the citizens to have that right to. The right to vote was in the Constitution at the same time as States voted for electors, and the Founders saw no conflict there. None of the Amendments since have specified that the Presidential electors shall be chosen by popular vote, so the 12th is still the defining section for this.

[God_Country_Trump_Guns]

Defense of laches (you spelled it correctly) arises when one party delays, and the other party suffers a detriment. So when GOP delayed, 3 million people voted by mail. That is a detriment.

I think all states delegate picking electors to their Secretaries of State. In PA, the legislature DID provide for universal mail-in ballots. Was this a violation of PA Constitution? I don’t know. But there is the defense of laches, it is also a question of state law. The US Constitution lets state legislatures delineate manner of picking electors, and if the state legislature provides for mail-in ballots, ostensibly in violation of its own constitution, it seems to me a question of state law.

I don’t know about other states. I do know that TX and NC also changed their voting laws due to pandemic. So it is probably a door that we don’t want opened.

Read AZ’s brief regarding citizens’ Constitutional right to have their votes counted. Second paragraph of page 2.

https://www.supremecourt.gov/DocketPDF/22/22O155/163258/20201209171850333_TX%20v%20PA%20Motion%20for%20Leave%20FINAL.pdf

MY PREDICTION: As all briefs are filed and reviewed, SCOTUS will give plaintiffs a stinging rebuke. These after-the-fact attempts will not be looked at kindly. The most recent filings aren’t even alleging fraud. They are seeking to throw out votes based on technicalities.

Like I said, it should have NEVER gotten to this. We need a central database of eligible and legal voters, run by the Feds, and the Feds should be printing uniform ballots and counting them. All due respect to Federalism, this system is too prone to malfeasance.

[God_Country_Trump_Guns]

Actually, I think the cite I gave you is incorrect. The Arizona brief supports the proposition that voters have a Constitutional right to have their votes COUNTED, which is not the same as casting a vote.

Anyway ... let’s wait and see.

[Svartalfiar]

Defense of laches (you spelled it correctly) arises when one party delays, and the other party suffers a detriment. So when GOP delayed, 3 million people voted by mail. That is a detriment

Except those voters are not a party to the suit. The defendants in this case did not suffer such detriment. If I rob a bank then hand out $1000 to every person on the street, those people are not entitled to that money, even though they did nothing wrong. It's not their fault that the money was illegally obtained. Those votes, even made in good faith, were submitted invalidly, and therefore are invalid. Frame of mind doesn't matter.


I think all states delegate picking electors to their Secretaries of State. In PA, the legislature DID provide for universal mail-in ballots. Was this a violation of PA Constitution? I don’t know. But there is the defense of laches, it is also a question of state law. The US Constitution lets state legislatures delineate manner of picking electors, and if the state legislature provides for mail-in ballots, ostensibly in violation of its own constitution, it seems to me a question of state law.

I don’t know about other states. I do know that TX and NC also changed their voting laws due to pandemic. So it is probably a door that we don’t want opened.

Other States did change their processes, but they did it correctly through their Legislatures. That's why the lawsuit ignores NV and AZ and VA, they didn't have courts of Governors make major changes for them.

WI, MI, and GA should, I think, be clear-cut victories for TX. PA is the only one that's questionable. As you mentioned, PA did do this legislatively, but they also legislatively prevented themselves from doing so without a lot more effort (amend their Constitution first) that they failed to do. It is, mostly, a question of State Law, but the State court obviously completed punted on the issue because it was the only way they could get the result they wanted. What's the proper recourse when a State Supreme Court, on State Law, is obviously incorrect, or fails to correct an issue?


MY PREDICTION: As all briefs are filed and reviewed, SCOTUS will give plaintiffs a stinging rebuke. These after-the-fact attempts will not be looked at kindly. The most recent filings aren’t even alleging fraud. They are seeking to throw out votes based on technicalities.

Except the plaintiffs are not involved in these other States until such time as they attempt to certify invalid vote counts, and that then affects the equity of the other States' EC votes. Can Texas legitimately be expected to follow and litigate 49 other States to ensure that those States are following Constitutional procedures prior to the elections? SCOTUS might give the PA case a stinging rebuke, but that doesn't change the fact that that case is correct and the facts are that that law is PA unConstitutional, and therefore the PASC should be shutting it down. Even if laches is used to preserve this election, it should have been clearly litigated for any future elections. If everyone now knows it's an illegitimate method of voting, what happens when people use it in 2022 if the Court doesn't fix it now? Another laches can kicked down the road?

[God_Country_Trump_Guns]

It’s true that voters are not a party, but the state has an obligation to defend the voters’ will. The example of bank robbery is misses the point. No crime was committed, and the voters, in reasonable reliance on a law that was duly enacted, gave up a right.

Anyway, this is a question of state law, and the PASC found the laches defense to be persuasive.

I just don’t see SCOTUS coming in and making a Federal case out of it.

I actually DON’T know whether other states changed their process correctly. To my knowledge, nobody has scrutinized the other states.

I don’t know why you think WI, MI, and GA are clear cut victories. I imagine at the end of the day, since the Constitution grants state legislators discretion to pick electors, if they do so in a manner that TX finds offensive, does that give TX standing to come in?

By next election, PA needs to either amend its Constitution, or amend its universal mail-in ballot law.

Anyway, lets wait and see.

It also does not help that TX AG is under indictment for insider trading and just got hit with a Federal subpoena. SCOTUS justices are supposed to ignore this, but they can’t help but think, at the back of their mind, that this could all just be him angling for a pardon.

[Jane Long]

It also does not help that TX AG is under indictment for insider trading and just got hit with a Federal subpoena.

---

Spoken like a true leftist.

Those are BS/bogus charges. Why even bring those up?

Welcome to FR, again.

[God_Country_Trump_Guns]

I said that because judges are human. That’s what I’ve learned practicing law for as long as I have. They make mistakes. They get overwhelmed. They are not omniscient, but some feel they need to pretend to be. And they have their biases.

So I am not optimistic a all. And maybe I shouldn’t say anything else because who knows who else reads posts here.

And, thanks for the welcome.

[Svartalfiar]

Anyway, this is a question of state law, and the PASC found the laches defense to be persuasive.

Except that answers nothing of the legal issues, which obviously still exist for any election going forward. Or was before this election the only possible chance anyone had to challenge an unConstitutional law?


I actually DON’T know whether other states changed their process correctly. To my knowledge, nobody has scrutinized the other states.

I believe some had Legislative sessions that added in rules for mass mail-in votes, and some had absentee laws that already were useable for this situation. Not that many States actually mass mailed every name in their database a ballot. I admit I haven't looked deeper into this, but there's obviously less drive to do so when any other State is unlikely to have their election flipped since most States are already expected to be Dem or Repub wins.


I don’t know why you think WI, MI, and GA are clear cut victories. I imagine at the end of the day, since the Constitution grants state legislators discretion to pick electors, if they do so in a manner that TX finds offensive, does that give TX standing to come in?

Because those three States had these issues with zero Legislative input. Pa's is an arguable situation, but these three had voting procedures added solely through court rulings or Gov diktat. But if these States pick electors via the Legislature, that's exactly what Texas is arguing they do. Obviously if they all pick Biden again, Texas would get the quick boot out of the court if we tried to sue over that.


I just don’t see SCOTUS coming in and making a Federal case out of it.

That cat is out of the bag. With 20+ States adding briefs to Texas, as well as a good chunk of PA's House, and 4-5 adding briefs to the defendants (plus another 15-20 saying they support em), there's only five or so States that haven't gotten involved in this at all. There's no way SCOTUS can just ignore this. They have to issue a serious ruling, and it's gonna have to be pretty detailed with plenty of solid Constitutional reasoning.

[God_Country_Trump_Guns]

My analysis and prediction, which I posted elsewhere, is that this is a frivolous lawsuit, and that we are being manipulated.

All of a sudden, we have hundreds of claimants - Congresspersons, states, even fictional states of “New California” and “New Nevada” are piling on. It has become a clown show. It looks like everyone who has Fed Court eFiling privileges wants a part in this circus.

I predict a stinging rebuke from SCOTUS. And if I am right, remember this sentence:

Every party, person, or entity that joined in this lawsuit knew it was frivolous, and did so only for show, in order to manipulate us.

That is my prediction. Now, sit back, relax, and enjoy the show.

The good thing is, after SCOTUS rules, we will know who manipulated us.

[Svartalfiar]

Eh, I don’t think the lawsuit itself is frivolous, but I certainly agree that they’re letting way too many random people try to jump onto it. Is there a reason that Texas, as the primary/originating plaintiff, can;t limit who they accept for briefs? Why would the court allow every Tom, Dick, and Harry to toss in $20 and file whatever random crap they want?

So do you expect ANY of the lawsuits to be taken seriously and actually go through?

[God_Country_Trump_Guns]

SCOTUS declined to hear the lawsuit on standing grounds.

[Svartalfiar]

SCOTUS declined to hear the lawsuit on standing grounds.

I noticed. I'm actually rather surprised, especially considering only Alito and Thomas voted to take the case.

[God_Country_Trump_Guns]

I read that cryptic two-sentence opinion differently. As I read it, they said SCOTUS has no discretion to reject a trial request in a state vs. state case. So they would have allowed the lawsuit be filed, “but would not grant other relief” in other words, would not have ordered any state to reverse election certifications.

Basically, they both agreed that TX had no standing. But they just believe every time a state v. state comes to SCOTUS, then SCOTUS is mandated to allow a complaint to be filed.

[Svartalfiar]

I read that cryptic two-sentence opinion differently. As I read it, they said SCOTUS has no discretion to reject a trial request in a state vs. state case. So they would have allowed the lawsuit be filed, “but would not grant other relief” in other words, would not have ordered any state to reverse election certifications.

Yea, this whole dismissal is really lacking in any context or reasoning behind it. But how can they decide to not grant relief if they haven't looked at the arguments of the case? That section is odd, as there's no telling what it actually means. I read it more as they think it should be filed, but no relief woild be granted until the case was litigated.

[God_Country_Trump_Guns]

The first part of the dissent is clear and unambiguous: “ we do not have discretion to deny the filing of a bill of complaint in a case that falls within our original jurisdiction.”

So, in a dispute between two states, where SCOTUS clearly has original jurisdiction, the justices have no discretion to deny the lawsuit from being filed.

The second sentence is a little cryptic: “I would therefore grant the motion to file the bill of complaint but would not grant other relief.”

I read that as: “I would let TX file its lawsuit, but as to the request for an order to overturn election results, I would not grant that relief.”

The SCOTUS is absolutely on solid ground in denying standing.