Recommended reading by Marc Elias on the Electoral Count Act

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Marc E. Elias
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Aug 6, 2022
@marceelias
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As Congress considers Electoral Count Act reform I strongly recommend this excellent analysis from 2020 by professor @Nedfoley. 👇

"Why counting presidential votes is not for federal district courts"

scotusblog.com
Why counting presidential votes is not for federal district courts - SCOTUSblog
For the past several months, Election Law at Ohio State and SCOTUSblog have teamed up to track significant election-related lawsuits with the potential to reach the Supreme Court and affect the...

Marc E. Elias
@marceelias
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The solution is for Congress to expressly empower state courts, not only federal courts, to review election disputes. The current ECA reform draft does the opposite.
4:00 PM · Aug 6, 2022

https://www.scotusblog.com/2020/11/why-counting-presidential-votes-is-not-for-federal-district-courts/

For the past several months, Election Law at Ohio State and SCOTUSblog have teamed up to track significant election-related lawsuits with the potential to reach the Supreme Court and affect the presidential election. Now, two weeks after Election Day, litigation over the outcome of the election is rapidly diminishing, but it hasn’t yet completely disappeared. Still scheduled for Tuesday, Nov. 17, is a hearing in the Trump campaign’s federal-court lawsuit seeking to delay certification of the popular vote in Pennsylvania. The remaining litigation almost certainly will not have a practical effect on the election’s outcome for a variety of reasons (it would be necessary for President Donald Trump to overturn Democrat Joe Biden’s apparent victory in three states, not enough ballots are at stake even assuming the merits of the legal theories raised, factual evidence is lacking on many of the claims made, and so forth). But as others have observed, there are still some legal principles at stake before this ends up just a matter for the history books.

In a recent Washington Post column, I set forth the basic reasons why litigation over the counting of votes in a presidential election belongs in state, rather than federal, court. If this procedural point is correct, as is also argued in an important amicus brief filed by prominent former GOP officeholders, the pending federal-court case that is the subject of tomorrow’s hearing should be dismissed without consideration of its merits, so that any such claims can be pursued in an appropriate forum established by state law. Here I elaborate on additional details in support of the basic point. Many of these are drawn from research for the book Ballot Battles: The History of Disputed Elections in the United States as well as work done for the American Law Institute’s Principles of Law—Election Administration project.

One can conceive of these points as adding up to the conclusion that federal courts should stay out of cases involving the counting of votes in presidential elections as a matter of equitable discretion — a court of equity historically always can decline to intervene, particularly on a request for a preliminary injunction or temporary restraining order, when the public interest as part of the “balancing of the equities” so dictates — rather than as a strict jurisdictional barrier to federal-district court review. Another way one could think of this is that vote-counting litigation in a presidential election warrants its own special form of an “abstention” doctrine, or at least yields the conclusion that traditional abstention doctrines as applied to this context calls upon federal district courts to abstain rather than getting involved. But whatever doctrinal label one wishes to attach to this conclusion, these factors combine to provide a strong basis for federal district courts refusing to intervene in the litigation over the counting of presidential ballots.

First, at the beginning of the 20th century, in a case involving allegations of ballot-box stuffing in a Kentucky gubernatorial election, Taylor v. Beckham, the Supreme Court invoked the political question doctrine to create a strict jurisdictional barrier to any federal court consideration of 14th Amendment claims arising from the vote-counting dispute. The political question doctrine had been articulated prior to the adoption of the 14th Amendment in the Rhode Island case of Luther v. Borden. Chief Justice Melville Fuller’s opinion for the Court in Taylor v. Beckham extended the prohibition on Article III federal courts becoming involved in this kind of fight over the outcome of an election to claims resting on the 14th Amendment. The court’s opinion is explicit on this jurisdictional point: “We must decline to take jurisdiction on the ground of deprivation of rights embraced by the 14th Amendment.”

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[SheltieLover]

1. Kicking for visibility

[enough]

2. I hope Elias' points are heard. Thanks for posting this.