[EL] Breaking: Trump campaign total loss in PA

[Rick Hasen]

Breaking: In Total Loss for Trump Campaign in Its Most Major Remaining Election Case, Federal Court in Pennsylvania Dismisses Case and Denies Motion to File Amended Complaint [link to opinion]<https://electionlawblog.org/?p=118942>
Posted on November 21, 2020 3:24 pm<https://electionlawblog.org/?p=118942> by Rick Hasen<https://electionlawblog.org/?author=3>

In a total loss the the Trump campaign, a federal district court in Pennsylvania has dismissed<https://electionlawblog.org/wp-content/uploads/gov.uscourts.pamd_.127057.202.0_1-1.pdf> the most serious case brought by the campaign and denied the campaign a motion to file an amended complaint.

The judge just excoriates this suit, which those of us in the field have called ridiculous from the start:

In other words, Plaintiffs ask this Court to disenfranchise almost seven million voters. This Court has been unable to find any case in which a plaintiff has sought such a drastic remedy in the contest of an election, in terms of the sheer volume of votes asked to be invalidated. One might expect that when seeking such a startling outcome, a plaintiff would come formidably armed with compelling legal arguments and factual proof of rampant corruption, such that this Court would have no option but to regrettably grant the proposed injunctive relief despite the impact it would have on such a large group of citizens.

That has not happened. Instead, this Court has been presented with strained legal arguments without merit and speculative accusations, unpled in the operative complaint and unsupported by evidence. In the United States of America, this cannot justify the disenfranchisement of a single voter, let alone all the voters of its sixth most populated state. Our people, laws, and institutions demand more. At bottom, Plaintiffs have failed to meet their burden to state a claim upon which relief may be granted. Therefore, I grant Defendants’ motions and dismiss Plaintiffs’ action with prejudice.

In a 37-page opinion, <https://electionlawblog.org/wp-content/uploads/gov.uscourts.pamd_.127057.202.0_1-1.pdf> the court concluded:

Defendants’ motions to dismiss the First Amended Complaint are granted with prejudice. Leave to amend is denied. “Among the grounds that could justify a denial of leave to amend are undue delay, bad faith, dilatory motive, prejudice, and futility.” Given that: (1) Plaintiffs have already amended once as of right; (2) Plaintiffs seek to amend simply in order to effectively reinstate their initial complaint and claims; and (3) the deadline for counties in Pennsylvania to certify their election results to Secretary Boockvar is November 23, 2020, amendment would unduly delay resolution of the issues. This is especially true because the Court would need to implement a new briefing schedule, conduct a second oral argument, and then decide the issues.

The court had many problems with the complaint, but this goes to the heart of the merits: “Granting Plaintiffs’ requested relief would necessarily require invalidating the ballots of every person who voted in Pennsylvania. Because this Court has no authority to take away the right to vote of even a single person, let alone millions of citizens, it cannot grant Plaintiffs’ requested relief.”

The court first held that both the individual plaintiffs and the Trump campaign lacked standing to raise the equal protection complaint in the lawsuit. Among other thing, the court remarked: “Neither of these orders would redress the injury the Individual Plaintiffs allege they have suffered. Prohibiting certification of the election results would not reinstate the Individual Plaintiffs’ right to vote. It would simply deny more than 6.8 million people their right to vote.“

Further on the merits of the equal protection claim, the court held: “Requiring that every single county administer elections in exactly the same way would impose untenable burdens on counties, whether because of population, resources, or a myriad of other reasonable considerations.” And: “Plaintiffs’ only remaining claim alleges a violation of equal protection. This claim, like Frankenstein’s Monster, has been haphazardly stitched together from two distinct theories in an attempt to avoid controlling precedent.”

This is a total loss for the Trump campaign and a dead end. The campaign can try to appeal this to the Third Circuit and even to the Supreme Court, but this is such a dog of a case I cannot see any chance of success there, even before the most sympathetic judges.

Rudy had truly participated in the worst piece of election litigation I have ever seen, both in terms of the lawyering and the antidemocratic nature of what the lawsuit attempted to do.

[This post has been updated.]
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


From: Law-election <law-election-bounces at department-lists.uci.edu> on behalf of Rick Hasen <rhasen at law.uci.edu>
Date: Saturday, November 21, 2020 at 3:20 PM
To: Election Law Listserv <law-election at uci.edu>
Subject: [EL] ELB News and Commentary 11/21/20

Arizona: “Maricopa County Board of Supervisors votes unanimously to certify election results”<https://electionlawblog.org/?p=118939>
Posted on November 21, 2020 3:15 pm<https://electionlawblog.org/?p=118939> by Rick Hasen<https://electionlawblog.org/?author=3>

AZ Central:<https://www.azcentral.com/story/news/politics/elections/2020/11/20/maricopa-county-supervisors-meet-consider-certifying-election-results/6362991002/>

Maricopa County’s election results are certified and final.

The Maricopa County Board of Supervisors, the elected body that oversees elections in Arizona’s most populous county, voted unanimously on Friday to approve the results of this month’s general election.

The majority-Republican supervisors did so after spending hours on Friday afternoon asking election officials who oversaw the voting process numerous questions related to election fairness, security, technology and oversight.

Before the vote, the supervisors, four Republicans and one Democrat, said they were satisfied with the answers.

Republican chairman Clint Hickman said there was no proof of fraud or misconduct in the election and he was confident that voters were provided with a fair election. He said that he “learned a lot about the character of people in this community” on the matter, and he would not “violate the law or deviate from my own moral compass,” even though he said that’s what some had pressured him to do.

“No matter how you voted, this election was administered with integrity, transparency, and most importantly in accordance with Arizona state laws,” Hickman said.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Nevada: “Judge rejects ‘shocking ask’ of new election over voter fraud claims brought by Sharron Angle and affiliated group”<https://electionlawblog.org/?p=118937>
Posted on November 21, 2020 3:13 pm<https://electionlawblog.org/?p=118937> by Rick Hasen<https://electionlawblog.org/?author=3>

Nevada Independent:<https://thenevadaindependent.com/article/judge-rejects-shocking-ask-of-new-election-over-voter-fraud-claims-brought-by-sharron-angle-and-affiliated-group>

A Clark County District Court judge has rejected what she called a “shocking ask” to nullify Nevada’s election results and order a new election on scant evidence of voter fraud brought by a group tied to former U.S. Senate candidate and conservative activist Sharron Angle.

Judge Gloria Sturman rejected the request by Election Integrity Project and Angle after a lengthy hearing Friday afternoon, saying that the group’s claims of potential voter fraud fell far short of the required level of evidence needed for a judgment in their favor — throwing out a state law allowing mail-in ballots to be sent to all active registered voters, declaring the 2020 election null and ordering a new election to take place.

Sturman said she didn’t want to outright dismiss concerns that people may have fraudulently voted in the 2020 election, but said there were other remedies available and that ordering a new election days before the statewide certification of vote totals would create a “very serious harm to the public.”

“I’m not saying that there might not be problems, and your client might not have found really serious problems, and there is an administrative remedy for people who do this kind of thing. They should be investigated by the secretary of state, and they should be prosecuted if found to have done something illegal,” she said. “But the civil remedy of throwing out an election is just, to me, a shocking ask.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Trump Campaign Appears to Be Deliberately Slowing Recount in Milwaukee<https://electionlawblog.org/?p=118934>
Posted on November 21, 2020 3:08 pm<https://electionlawblog.org/?p=118934> by Rick Hasen<https://electionlawblog.org/?author=3>

Journal-Sentinel:<https://www.jsonline.com/story/news/2020/11/20/live-updates-wisconsin-election-recount-dane-milwaukee-counties/6353846002/>

“The Trump campaign is continually revisiting issues that the commission has ruled on, such as observers saying that they cannot see when, again, that was addressed already,” Christenson said to explain what is slowing the process.

There appeared to be a disconnect between the attorneys arguing before the three-member Board of Canvassers and the attorneys acting on behalf of the Trump campaign in the aisles and the observers at each of the tables where the counting is taking place, he said.

Another issue, he said, is that the observers are “disruptive,” asking question after question and telling the election workers to stop what they’re doing.

“It’s not our job to train their observers on what they’re observing,” he said. “They clearly don’t know what they’re doing and so they keep asking questions. And we’ve said to the Trump campaign, you need to tell your people what you’re looking for here because they’re objecting to every ballot.”

Observers need to ask the campaigns if they have questions, not the election workers, he said.

He said he believed a total of three ballots from Bayside and Hales Corners were rejected so far.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Michigan, national GOP seek to delay certification of election results”<https://electionlawblog.org/?p=118932>
Posted on November 21, 2020 2:53 pm<https://electionlawblog.org/?p=118932> by Rick Hasen<https://electionlawblog.org/?author=3>

Detroit News:<https://www.detroitnews.com/story/news/local/michigan/2020/11/21/state-national-gop-seek-delay-certification-election-results/6373717002/>

The Michigan and national Republican parties have asked the Board of State Canvassers to delay certification of the state’s election results in a bid to investigate “anomalies and irregularities” alleged to have occurred in Michigan’s Nov. 3 election.

Michigan Republican Party Chairwoman Laura Cox and Republican National Committee Chairwoman Ronna Romney McDaniel asked the state to conduct a “full, transparent audit” before certification, noting other states like Georgia “have taken discretionary steps” in determining their results.

The Board of State Canvassers is scheduled to meet Monday to consider certification.

The request from Cox and McDaniel came the morning after Michigan Republican lawmakers met with President Donald Trump at the White House for an hour.

In a statement after the meeting, Senate Majority Leader Mike Shirkey and House Speaker Lee Chatfield suggested the lawmakers used the Oval Office meeting to focus on COVID-19 relief and not the certification of Michigan’s election results.

Chatfield and Shirkey also said in their statement that they have “not yet been made aware of any information that would change the outcome of the election in Michigan,” which President-elect Joe Biden won by 154,000 votes.

But Trump responded on Twitter Saturday morning to the lawmakers’ statement by reiterating his unproven claims that there was “massive voter fraud” in Michigan’s election.

Trump retweeted a post from Shirkey about the meeting, saying, “This is true, but much different than reported by the media. We will show massive and unprecedented fraud!” Trump wrote.

Through a spokeswoman, Shirkey declined to comment on Trump’s tweet Saturday.
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Posted in fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“NAACP LDF Lawsuit: Trump Violated Voting Rights Act”<https://electionlawblog.org/?p=118930>
Posted on November 21, 2020 2:43 pm<https://electionlawblog.org/?p=118930> by Rick Hasen<https://electionlawblog.org/?author=3>

HuffPost:<https://www.huffpost.com/entry/naacp-trump-lawsuit-voting-rights-act-violation_n_5fb8ca33c5b6cf1e0f085815>

The NAACP Legal Defense Fund filed a federal lawsuit on behalf of Black Michigan<https://www.huffpost.com/news/topic/michigan> voters against President Donald Trump<https://www.huffpost.com/news/topic/donald-trump> and his campaign Friday, accusing both of violating the Voting Rights Act.

The lawsuit, filed in U.S. District Court in Washington<https://www.naacpldf.org/wp-content/uploads/Trump-Campaign-Complaint.pdf>, argued that Trump is pressuring election officials not to certify votes in Michigan based on false allegations of election fraud in an attempt to suppress votes, particularly those of Black voters.

The fraud allegations have been “consistently debunked and the campaign’s litigation attempts turned away by courts in several states,” Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund Inc., said in a statement<https://www.naacpldf.org/press-release/ldf-files-lawsuit-against-president-trump-and-the-trump-campaigns-attempts-to-overturn-the-election-by-disenfranchising-black-voters-in-michigan/>.

“The president’s use of dog whistles to suggest the illegitimacy of votes cast by Black voters in Detroit, Philadelphia, Milwaukee and Atlanta are an appeal to a dangerous and corrosive racialized narrative of voter fraud<https://www.naacpldf.org/press-release/ldf-files-lawsuit-against-president-trump-and-the-trump-campaigns-attempts-to-overturn-the-election-by-disenfranchising-black-voters-in-michigan/>,” she added.

The lawsuit argued that the president’s “tactics repeat the worst abuses in our nation’s history, as Black Americans were denied a voice in American democracy for most of the first two centuries of the Republic.”

Defendants are “openly seeking to disenfranchise Black voters, including voters in Detroit, Michigan,” the suit alleged. “Repeating false claims of voter fraud, which have been thoroughly debunked, Defendants are pressuring state and local officials in Michigan not to count votes from Wayne County, Michigan, … and thereby disenfranchise hundreds of thousands of voters.”

The Voting Rights Act of 1965 “protects against efforts to intimidate or coerce officials to disenfranchise Black voters,” Ifill said.

The lawsuit called for Trump or his campaign to halt any efforts to disenfranchise voters.
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Posted in Voting Rights Act<https://electionlawblog.org/?cat=15>


“Duty or Party? For Republicans, a Test of Whether to Enable Trump”<https://electionlawblog.org/?p=118928>
Posted on November 21, 2020 2:41 pm<https://electionlawblog.org/?p=118928> by Rick Hasen<https://electionlawblog.org/?author=3>

NYT<https://www.nytimes.com/2020/11/21/us/politics/trump-vote.html>:

But this is also a moment of truth for the Republican Party: The country is on a knife’s edge, with G.O.P. officials from state capitols to Congress choosing between the will of voters and the will of one man. In pushing his false claims to the limits, cowing Republicans into acquiescence or silence, and driving officials like Mr. Shinkle to nervous indecision, Mr. Trump has revealed the fragility of the electoral system — and shaken it.

At this point, the president’s impact is not so much about overturning the election — both parties agree he has no real chance of doing that — but infusing the democratic process with so much mistrust and confusion that it ceases to function as it should….

Civil rights leaders are especially alarmed at Mr. Trump’s efforts, given that most of them have falsely portrayed cities with large Black populations, like Detroit and Philadelphia, as so corrupt that their votes shouldn’t count. The argument that Mr. Trump’s attempt is all for show and will not succeed has done little to allay their concern.

“How is it ‘show’ when you’re basically systematically delegitimizing Black voters by your rhetoric,” said Sherrilyn Ifill, president of the NAACP Legal Defense and Educational Fund, which filed suit<https://www.naacpldf.org/press-release/ldf-files-lawsuit-against-president-trump-and-the-trump-campaigns-attempts-to-overturn-the-election-by-disenfranchising-black-voters-in-michigan/> against Mr. Trump in Michigan on Friday for trying to disenfranchise Black voters (it did so on behalf of the Michigan Welfare Rights Organization and three residents). “How can that be anything but incredibly dangerous,” she added.

Ms. Ifill marveled at the position of the Republican Party, which was the nation’s first true civil rights party from the time of slavery through the late 1950s, but now, under Mr. Trump’s unchallenged leadership, is effectively taking a stance against voting in entire cities and states.

“Civil rights haven’t moved — one party has moved, and that move has not been toward an embrace of democracy, it’s been away from it,’’ she said.
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Posted in chicanery<https://electionlawblog.org/?cat=12>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“Analysis: With silence, GOP enables Trump’s risky endgame”<https://electionlawblog.org/?p=118926>
Posted on November 21, 2020 2:01 pm<https://electionlawblog.org/?p=118926> by Rick Hasen<https://electionlawblog.org/?author=3>

AP reports.<https://apnews.com/article/election-2020-joe-biden-donald-trump-elections-coronavirus-pandemic-68b79cf2afe8bebbf8516c1737ebcc91>
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Trump bid to overturn vote crashes into wall of deadlines”<https://electionlawblog.org/?p=118924>
Posted on November 21, 2020 1:59 pm<https://electionlawblog.org/?p=118924> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico<https://www.politico.com/news/2020/11/20/trump-overturn-election-results-438925>:

President Donald Trump’s effort to overturn the election results is about to smash into reality: a gauntlet of battleground state deadlines that are poised to extinguish his increasingly desperate attempts to hold onto the presidency.

Michigan is due to certify its state results Monday. Arizona and Pennsylvania counties must also finalize their results the same day. On the heels of Georgia’s certification of Joe Biden’s victory on Friday, the series of administrative deadlines stands to all but formalize Biden’s win by officially affirming the results in enough contested states to put him over the 270-electoral-vote threshold.

As late as Friday, the president summoned Michigan lawmakers to the White House as part of his last-ditch lobbying effort to convince them to intervene to stop the state’s certification of the election results….

So far congressional Republicans have largely kept Trump at arm’s length, refusing to embrace his allegations of fraud but insisting he has the right to lodge fraud complaints and take legal action. Some of Trump’s closer allies in the Capitol have called for a hearing on election “irregularities,” suggesting the complaints from the Trump campaign deserve to be pursued.

In the meantime, Trump’s arguments have made inroads with Republican voters, with polls reflecting deep distrust in the election results, despite no substantiveevidence of fraud.

“It’s a crass anti-democratic effort that is bound to fail but it is helping to undermine the confidence of Trump supporters in the process,” said Rick Hasen, a law professor at the University of California Irvine. “So this is not a cost-less exercise. Just because it’s not going to work doesn’t mean that’s harmless.”
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Posted in chicanery<https://electionlawblog.org/?cat=12>, Election Meltdown<https://electionlawblog.org/?cat=127>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“Trump tries to drum out GOP election officials who won’t play his games”<https://electionlawblog.org/?p=118922>
Posted on November 21, 2020 1:57 pm<https://electionlawblog.org/?p=118922> by Rick Hasen<https://electionlawblog.org/?author=3>

Politico:<https://www.politico.com/news/2020/11/21/trump-gop-elections-challenge-438938>

President Donald Trump has driven senators into retirement and tweeted wayward Republicans into primary defeat during four years leading the GOP. Now, as a lame duck, he’s launched a new campaign against GOP election officials who won’t bend to his will.

Trump’s drive to discredit the results of an election he lost has put him at odds with the Republican elected officials and administrators who oversaw the vote in key states — and called it what it was: a free and fair election. Being at odds with Trump doesn’t go over well in today’s Republican Party, and Trump has turned their political bases against them, even unleashing threats from his most rabid supporters.

No GOP official has caught more flak than Georgia Secretary of State Brad Raffensperger, a fairly conventional Republican who won the job as Georgia’s top election official two years ago running as a rock-ribbed, anti-voter fraud conservative — with Trump’s endorsement. Now, after refusing strident calls from Trump and allies not to certify results that show President-elect Joe Biden carried Georgia, he’s facing down a potential primary challenge in 2022 and his family is dealing with death threats.https://e2013af35bb80840858adee9831441fd.safeframe.googlesyndication.com/safeframe/1-0-37/html/container.html

“I am a Republican, and a conservative one. And I believe that I’m going to be disappointed, because I don’t believe that my candidate is going to win,” Raffensperger said in an interview this week, before Georgia certified its results. “But that said, I want 100 percent of people to have confidence in the results. I’m not gonna like it. And I’m gonna have to take that medicine, just like everyone else in my party will, but it will be an accurate count.”

Raffensperger said he will run for another term in 2022, though other Republicans “probably have notions” of beating him in a primary now, he said. “And right now, emotions are pretty high. That’ll be what it is. I’m going to do my job. And my accounting is to the Georgians that put me in office here, and really all Georgians.”
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Posted in chicanery<https://electionlawblog.org/?cat=12>, fraudulent fraud squad<https://electionlawblog.org/?cat=8>


“Justice Dept. meets Trump, Giuliani vote-fraud claims with silent skepticism”<https://electionlawblog.org/?p=118920>
Posted on November 21, 2020 1:38 pm<https://electionlawblog.org/?p=118920> by Rick Hasen<https://electionlawblog.org/?author=3>

WaPo:<https://www.washingtonpost.com/national-security/trump-giuliani-election-fraud-justice-department/2020/11/21/223eb074-2b8f-11eb-92b7-6ef17b3fe3b4_story.html>

The Justice Department has met President Trump’s fantastical claims of widespread voter fraud with two weeks of skeptical silence, not taking any overt moves to investigate what Trump’s lawyer, Rudolph W. Giuliani, claims is a globe-spanning conspiracy to steal the election.

Such deafening silence from one of the government’s main enforcers of election law indicates just how little evidence there is to support the wild, wide-ranging claims made by Trump and his supporters, most notably Giuliani in a Thursday news conference held inside the Republican National Committee headquarters.

Privately, Justice Department officials have said they are willing to investigate legitimate claims of vote fraud; Attorney General William P. Barr even loosened some restrictions that might otherwise have discouraged prosecutors from doing so before results are certified.

But current and former officials said they thought Giuliani’s accusations sounded “crazy,” and they have not seen or heard of any evidence suggesting large-scale fraud, let alone the kind of intercontinental conspiracy described by the president’s lawyer. Like others, they spoke on the condition of anonymity to discuss a politically sensitive matter.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


Trump Campaign Reply Brief in PA Federal Case Ignores Binding Supreme Court Authority on Standard for Preliminary Relief, Misspells Governor’s Name<https://electionlawblog.org/?p=118915>
Posted on November 21, 2020 10:09 am<https://electionlawblog.org/?p=118915> by Rick Hasen<https://electionlawblog.org/?author=3>

More to come when I have time, but start here:<https://twitter.com/rickhasen/status/1330210785650499590?s=20>

Here’s the current third circuit<https://scholar.google.com/scholar_case?case=21624848412753937&hl=en&as_sdt=6&as_vis=1&oi=scholarr> standard, which shows that the must be a showing of BOTH a likelihood of success AND irreparable harm, not, as the old case states “A sufficiently strong showing on either the likelihood of success or irreparable harm may justify an injunction”:

We also are aware that, significantly later than this confusion arose, the Supreme Court stated that “[a] plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008)<https://scholar.google.com/scholar_case?case=9332929800353837765&hl=en&as_sdt=2006&as_vis=1>. At first blush that statement would lend support to the divergent standard articulated in Opticians Association of America almost twenty years earlier. But for four reasons we think Winter did not overrule our balancing-of-the-factors standard.

First, the Supreme Court in Winter explained that “[i]n each case … courts must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief.” Winter, 555 U.S. at 24, 129 S.Ct. 365<https://scholar.google.com/scholar_case?case=9332929800353837765&hl=en&as_sdt=2006&as_vis=1> (emphasis added) (quotation omitted). It concluded that “[a]n injunction is a matter of equitable discretion” that requires “the balance of equities.” Id. at 32, 129 S.Ct. 365 (emphasis added). That is why Justice Ginsburg determined that the 178<https://scholar.google.com/scholar_case?case=21624848412753937&hl=en&as_sdt=6&as_vis=1&oi=scholarr#p178>*178<https://scholar.google.com/scholar_case?case=21624848412753937&hl=en&as_sdt=6&as_vis=1&oi=scholarr#p178> “Court has never rejected [the balancing] formulation, and [did] not believe it [did] so” in Winter. Id. at 51, 129 S.Ct. 365 (Ginsburg, J., dissenting).

That reading of Winter comports with the Supreme Court’s following opinion on temporary equitable orders, Nken v. Holder, 556 U.S. 418, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009),<https://scholar.google.com/scholar_case?case=13464114828301030690&hl=en&as_sdt=2006&as_vis=1> decided in the same term just five months later (with both opinions written by Chief Justice Roberts). There the Court explained that a district court must undertake “consideration of [the] four factors.” Id. at 434, 129 S.Ct. 1749. “Once an applicant satisfies the first two factors, the traditional [equitable relief] inquiry calls for assessing the harm to the opposing party and weighing the public interest.” Id. at 435, 129 S.Ct. 1749. Though Nken dealt with the issuance of a stay pending appeal, the Court explained that the same factors apply as in the preliminary injunction context “not because the two are one and the same, but because similar concerns arise whenever a court order may allow or disallow anticipated action before the legality of that action has been conclusively determined.” Id. at 434, 129 S.Ct. 1749. Read together, these companion cases promote the traditional flexibility to granting interim equitable relief in which the district court has full discretion to balance the four factors once gateway thresholds are met. See id.; Winter, 555 U.S. at 32, 129 S.Ct. 365<https://scholar.google.com/scholar_case?case=9332929800353837765&hl=en&as_sdt=2006&as_vis=1>.

Second, other circuits have agreed with our reading of Winter and Nken. For instance, the Seventh Circuit, citing Winter, has held that a preliminary injunction may issue if the movant demonstrates it will face irreparable harm and has a “plausible claim on the merits,” after which “the `balance of equities’ favors” the movant. Hoosier Energy Rural Elec. Coop., Inc. v. John Hancock Life Ins. Co., 582 F.3d 721, 725 (7th Cir. 2009) (Easterbrook, C.J<https://scholar.google.com/scholar_case?case=5387788711831397595&hl=en&as_sdt=2006&as_vis=1>.). “How strong a claim on the merits is enough depends on the balance of the harms: the more net harm an injunction can prevent, the weaker the plaintiff’s claim on the merits can be while still supporting some preliminary relief.” Id. Similarly, citing Winter, the D.C. Circuit has declined “to abandon the so-called `sliding scale’ approach to weighing the four preliminary injunction factors” and held that a “party seeking a preliminary injunction must make a clear showing that [the] four factors, taken together, warrant relief….” League of Women Voters of the United States v. Newby, 838 F.3d 1, 6-7 (D.C. Cir. 2016)<https://scholar.google.com/scholar_case?case=17686267603376374706&hl=en&as_sdt=2006&as_vis=1> (emphasis added) (quotations omitted). The Second Circuit also has interpreted Winter and Nken as permitting a district court to continue a “flexible approach” in granting preliminary equitable relief, and that if those cases meant “to abrogate the more flexible standard for a preliminary injunction, one would expect some reference to the considerable history of the flexible standards applied in [the Second Circuit], seven [other] sister circuits, and the Supreme Court itself.” Citigroup Glob. Mkts., Inc. v. VCG Special Opportunities Master Fund, Ltd., 598 F.3d 30, 37-38 (2d Cir. 2010)<https://scholar.google.com/scholar_case?case=11394478643374377889&hl=en&as_sdt=2006&as_vis=1>. We find that reasoning persuasive.

Third, no test for considering preliminary equitable relief should be so rigid as to diminish, let alone disbar, discretion. District courts have the freedom to fashion preliminary equitable relief so long as they do so by “exercising their sound discretion.” Winter, 555 U.S. at 24, 129 S.Ct. 365<https://scholar.google.com/scholar_case?case=9332929800353837765&hl=en&as_sdt=2006&as_vis=1> (quotation omitted). Because those courts are on the frontline and are much more familiar with the unique facts of a particular case, we apply a deferential standard in reviewing their decisions on preliminary equitable relief — abuse of discretion. See Campbell Soup Co., 977 F.2d at 91<https://scholar.google.com/scholar_case?case=2124288171732483106&hl=en&as_sdt=2006&as_vis=1> (quotation omitted). Indeed, “[t]he essence of equity jurisdiction has been the power of the [court] to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it.” Weinberger v. Romero-Barcelo, 456 U.S. 305, 312, 102 S.Ct. 1798, 72 L.Ed.2d 91 (1982)<https://scholar.google.com/scholar_case?case=5203810460191551378&hl=en&as_sdt=2006&as_vis=1> (quotations omitted).

179<https://scholar.google.com/scholar_case?case=21624848412753937&hl=en&as_sdt=6&as_vis=1&oi=scholarr#p179>*179<https://scholar.google.com/scholar_case?case=21624848412753937&hl=en&as_sdt=6&as_vis=1&oi=scholarr#p179> Fourth, disallowing a district court from balancing the four factors is inconsistent with the Supreme Court’s post-Winter instruction in Nken that, when evaluating whether interim equitable relief is appropriate, “[t]he first two factors of the traditional standard are the most critical.” 556 U.S. at 434, 129 S.Ct. 1749<https://scholar.google.com/scholar_case?case=13464114828301030690&hl=en&as_sdt=2006&as_vis=1>. An Opticians Association of America standard — in which all four factors are effectively critical in equal recourse — is logically incompatible with Nken‘s unambiguous holding. What would be the point of creating two gateway factors by placing elevated value on them if all are equally imperative? There would be none. And to require a moving party to prevail on all factors reads out balancing when not all factors favor that party.

Accordingly, we follow our precedent that a movant for preliminary equitable relief must meet the threshold for the first two “most critical” factors: it must demonstrate that it can win on the merits (which requires a showing significantly better than negligible but not necessarily more likely than not[3]<https://scholar.google.com/scholar_case?case=21624848412753937&hl=en&as_sdt=6&as_vis=1&oi=scholarr#[3]>) and that it is more likely than not to suffer irreparable harm in the absence of preliminary relief[4]<https://scholar.google.com/scholar_case?case=21624848412753937&hl=en&as_sdt=6&as_vis=1&oi=scholarr#[4]>. If these gateway factors are met, a court then considers the remaining two factors and determines in its sound discretion if all four factors, taken together, balance in favor of granting the requested preliminary relief. In assessing these factors, Judge Easterbrook’s observation bears repeating: “How strong a claim on the merits is enough depends on the balance of the harms: the more net harm an injunction can prevent, the weaker the plaintiff’s claim on the merits can be while still supporting some preliminary relief.” Hoosier Energy, 582 F.3d at 725<https://scholar.google.com/scholar_case?case=5387788711831397595&hl=en&as_sdt=2006&as_vis=1>.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Liberal dark-money behemoth raised nearly $140M last year”<https://electionlawblog.org/?p=118912>
Posted on November 21, 2020 9:08 am<https://electionlawblog.org/?p=118912> by Richard Pildes<https://electionlawblog.org/?author=7>

Politico:<https://electionlawblog.org/>

One of the left’s biggest financial hubs raised $137 million from anonymous donors in 2019 — a massive sum that funded an eight-figure ad campaign attacking Republican senators, bolstered key pieces of Democratic and environmentalist infrastructure and supported expensive ballot measure campaigns.

The nine-figure influx to the Sixteen Thirty Fund last year, detailed in a new tax filing<https://www.politico.com/f/?id=00000175-e6b6-d27b-a5f7-f6b6bae70000>, almost equaled the group’s fundraising during the 2018 midterm elections, when the nonprofit raised $143 million and

The “social welfare organization” — which, unlike a super PAC, is not required to disclose the identities of its donors — has multiplied in size during the Trump administration, becoming one of the biggest financial forces in American politics. Sixteen Thirty Fund’s rise signaled the left’s embrace of nonprofit groups it long derided as “dark money,” when the right dominated the space during the Obama years….

More than half of the Sixteen Thirty Fund’s money came from just three anonymous sources in 2019: One donor gave more than $33 million, while another chipped in $29.3 million and a third made a $12.1 million contribution. An additional four contributors gave between $5 million and $10 million in 2019, and 11 more gave at least $1 million. Altogether, those 18 donors gave more than $127 million — more than 90 percent of the Sixteen Thirty Fund’s total inflow last year.
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“The Founders didn’t prepare for a president who refuses to step down, historians say”<https://electionlawblog.org/?p=118909>
Posted on November 21, 2020 5:11 am<https://electionlawblog.org/?p=118909> by Richard Pildes<https://electionlawblog.org/?author=7>

Historians weigh in on this at the Washington Post<https://www.washingtonpost.com/history/2020/11/21/founders-constitution-president-trump-concede/>. Here is a passage from the Anti-Federalists, who opposed the Constitution — this is about their fear of the new office of the President:

… We may also suppose, without trespassing upon the bounds of probability, that this man may not have the means of supporting, in private life, the dignity of his former station; that like Caesar, he may be at once ambitious and poor, and deeply involved in debt. Such a man would die a thousand deaths rather than sink from the heights of splendor and power, into obscurity and wretchedness.”
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Posted in Uncategorized<https://electionlawblog.org/?cat=1>


“Hoyer: Earmarks are likely coming back next year”<https://electionlawblog.org/?p=118907>
Posted on November 21, 2020 3:55 am<https://electionlawblog.org/?p=118907> by Richard Pildes<https://electionlawblog.org/?author=7>

I was glad to see this news<https://www.rollcall.com/2020/11/20/hoyer-earmarks-are-likely-coming-back-next-year/>. I have been arguing<https://www.yalelawjournal.org/article/the-decline-of-american-government> for a number of years now that the 2011 ban on earmarks is a good example of how the pursuit of “political purity” has contributed to making Congress less able to put together budget and appropriations legislation. With a small governing majority, it is all the more important that Democratic leaders in the House have the ability to bring members along on these matters by offering them benefits for their districts. If this change is adopted, I will be interested to see what conditions, if any, are imposed on the kinds of earmarks that can be requested.

The House had created a Select Committee on the Modernization of Congress as one of the first acts of the 116th Congress. The committee has been praised for functioning in a bipartisan fashion. It was chaired by Rep. Kilmer (D-Wa), with Rep. Tom Graves (R-Ga) as vice-chair. When the committee issued its report, I blogged<https://electionlawblog.org/?p=116630> a month ago on this site about its recommendation to restore earmarks, among the 97 recommendations the committee made.

Here is an excerpt from that earlier post:

“One of the biggest reasons, I think, Congress is held in low regard is because of the dysfunction that you’ve seen on budget and appropriations matters,” Kilmer said.

They believe that if members of Congress could be in charge of directing funding to their districts, they will be much more invested in the entire process.

Their proposal would limit earmarks to local entities like water authorities and police departments, not private companies, and that they would function like grant proposals. And if local officials abused the system, federal investigators would be empowered to claw back the funds.
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“Is Wall Street Turning Blue?”<https://electionlawblog.org/?p=118905>
Posted on November 21, 2020 3:09 am<https://electionlawblog.org/?p=118905> by Richard Pildes<https://electionlawblog.org/?author=7>

This is the abstract from a new study<https://privpapers.ssrn.com/sol3/papers.cfm?abstract_id=3671667>, published by Yosef Bonaparte<https://privpapers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=583668>:

We demonstrate that since the early 1990’s, it is becoming increasingly common for firms to be run by CEOs who are aligned with the Democratic Party, which we refer to as the blue trend. We find evidence that at least one factor driving this trend appears to be the rise of the role of women, who tend to have values that align with the Democratic Party. Further, we find that the blue trend is stronger in industries that are more considerable to women as a source of employees or customers (e.g., hospitality, computers, etc.). Nevertheless, the trend appears to be quite pervasive, as nearly 75% of industries turned bluer. The blue trend also has several implications on corporate governing and on the overall stock market performance and volatility, as the presence of more CEOs who are aligned with the Democratic Party is associated with the lower overall stock market returns. Collectively, our evidence suggests that there is a change in the leadership on Wall Street and that has implications for corporate culture, and the stock market landscape.
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Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org<http://electionlawblog.org/>


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