SCOTUS Shadow Docket De Facto Denies Trump's Latest Challenge to Pennsylvania Vote Count

The Response is due January 22. The inauguration us January 20.

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On December 21, more than a month after the election, Donald J. Trump for President filed a petition for a writ of certiorari from the Supreme Court of Pennsylvania's decision. Law Professor John Eastman, who represents Trump, also filed a motion to expedite consideration of the petition for a writ of certiorari. Eastman asked for a super-fast briefing schedule:

Accordingly, Petitioner submits that Respondents should be directed to file their response(s) to the petition by 12:00 noon on December 23, 2020; and Petitioner submit its Reply Brief in support of certiorari by 12:00 noon on December 24, 2020. If certiorari is granted, if the Court deems additional briefing will be helpful, Petitioner submits that the Court should order expedited contemporaneous opening merits briefs for Petitioner and Respondents, together with any amicus curiae briefs. and contemporaneous Reply briefs for Petitioner and Respondents within 24 hours thereafter. If oral argument is deemed helpful, Petitioner submits that it should be ordered expedited, as well.

This schedule, in theory, would allow a resolution prior to January 20. And it could even permit a resolution prior to January 6 when Congress formally votes on the electoral votes.

The Court has not formally acted on Eastman's motion to expedite. But the Court, through the shadow docket, has de facto denied the motion, and indeed the entire challenge. A notation on the docket indicates that Pennsylvania's response is due on January 22. Two days after the inauguration. And sixteen days after Congress assembles. Game over.

It is unclear if Circuit Justice Alito was responsible for this de facto denial, or if the ruling came from the Clerk. My guess is the former. I doubt the Clerk would act alone on such a significant issue without consultation from the Circuit Justice.

Earlier this month, Circuit Justice Alito de facto denied another emergency appeal from Pennsylvania. He set the reply date after the safe harbor date. But then Alito walked it back.

The shadow docket abides.

NEXT: The Appellate Shadow Docket

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  1. You fat thumbed the subtitle there, Justice Blackman.

  2. It’s already moot as to 2020. Insofar as it purports to seek relief as to future elections, it’s arguably not — in which event, in a case in which the SCOTUS has already refused expedited consideration, the briefing schedule is appropriate.

    However, the crux of the central claim for relief is a ruling by the PA supreme court directing that — as equitable relief during the pandemic — votes received after election day still be counted. (Those ballots were segregated, per Justice Alito’s order, but not included in PA’s official certified totals, and they were mathematically incapable of flipping the state to Trump anyway.) The petitioners will argue that the case falls within the capable of repetition yet evading review doctrine, but it would take a future convergence of (1) another PA supreme court order to the exact same effect as this temporary one (2) based upon a pandemic (3) during which a presidential election is conducted — which, while not entirely inconceivable, is very unlikely to be repeated, and certainly falls short of the “reasonable expectation” standard.

    I therefore expect a suggestion of mootness to be filed after the presidential inauguration, and the remaining case to be dismissed on grounds of mootness even as to future elections, shortly after the inauguration.

    1. “(1) another PA supreme court order to the exact same effect as this temporary one”

      Why the exact same effect? Does “capable of repetition” actually require perfectly exact replication? Shouldn’t the possibility that the state supreme court might, based on some new pretext, order some other state election law violated, be sufficient?

      Then there’s the matter of the law in question having had an explicit anti-severance clause, stating that the entire law would be void if ANY part of it weren’t upheld. The PA supreme court just blew that off entirely.

      So, arguably, it wasn’t just the waiver of the deadline for receipt of absentee ballots that was unconstitutional, it was the entire early voting process from top to bottom.

      But I tend to agree with your last paragraph anyway. The Court isn’t obligated to blow off the whole topic, but they appear to want to.

      1. Why the exact same effect? Does “capable of repetition” actually require perfectly exact replication? Shouldn’t the possibility that the state supreme court might, based on some new pretext, order some other state election law violated, be sufficient?

        No.

        Then there’s the matter of the law in question having had an explicit anti-severance clause, stating that the entire law would be void if ANY part of it weren’t upheld.

        Did you ever notice how you keep claiming both that the SCOPA found the law to be constitutional and that the SCOPA failed to apply the anti-severance clause if it was found unconstitutional? Ever think that at least one of those can’t possibly be right?

        1. Yes, I’ve noted before that they’d found the law constitutional, within the power of the legislature to enact, that the legislature was entitled to set this deadline, and then ordered the deadline violated without declaring it unconstitutional.

          It’s fairly clear that they de facto declared it unconstitutional as applied, because their basis for ordering it violated was a supposedly conflicting clause of the state constitution. If a law conflicts with a relevant clause of a constitution, the term for that law is, “unconstitutional”.

          But they deliberately didn’t use the magic word, “unconstitutional”, so they could justify keeping the rest of the law in effect.

          It was an exercise in having it both ways.

          1. It is fairly clear that you do not have any understanding of what an as applied challenge is.

    2. So just yet another example of “Court avoids doing its job”.

      1. Appeasing persistent, delusional, lying litigants is not the Court’s job. These frantic dumbasses are getting at least as much respect as they deserve, from one court to another. When Justice Alito tells right-wingers the party’s over, that’s a message that should register even in Clingerville.

  3. Is Blackman trying to suggest it is some kind of injustice that the Supreme Court will not now consider overturning the election prior to the inauguration? How could anyone insist on that and hold onto a job as a law professor?

    1. I don’t read the article as making any sort of editorial comment on what the Supreme Court should do or should have done.

    2. No, he appears to be suggesting that the Court should clarify this question of whether state courts can order state (Presidental) election laws violated be resolved going forward, so that this mess doesn’t come up 4 years from now.

      1. Brett, if that were his objective, why would Blackman care that the Court set a post-inauguration date to consider the issues?

        1. I see no evidence that he does care one way or the other. It happened. He made note of it. That’s all.

  4. Agreed, I think the post is a neutral commentary. But for anyone interested I suggest you read the submission to the Court. The conclusion afterwards will be that this was such a rediculous, misinformed, error filled piece of legal garbage that the Court decided to condemn it with the contempt it deserved.

  5. Eastman and his client are clowns, and their papers are an insult to clown shows everywhere.

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