Here is the key passage in Judge Boasberg's opinion in the latest round of Trump campaign adjacent litigation:
It is not a stretch to find a serious lack of good faith here. See Trump v. Wis. Elections Comm’n, No. 20-3414, 2020 WL 7654295, at *4 (7th Cir. Dec. 24, 2020).
Yet even that may be letting Plaintiffs off the hook too lightly. Their failure to make any effort to serve or formally notify any Defendant — even after reminder by the Court in its Minute Order — renders it difficult to believe that the suit is meant seriously. Courts are not instruments through which parties engage in such gamesmanship or symbolic political gestures. As a result, at the conclusion of this litigation, the Court will determine whether to issue an order to show cause why this matter should not be referred to its Committee on Grievances for potential discipline of Plaintiffs’ counsel.
The full opinion is here. The complaint is here.
The plaintiffs are represented by the prominent Minnesota attorney Erick G. Kaardal, Special Counsel for Amistad Project of Thomas More Society, Mohrman, Kaardal & Erickson, P.A.
The operative claim in the plaintiffs' case is after the jump:
The federal laws regarding the Presidential electors, codified at 3 U.S.C. §§ 5, 6 and 15 are constitutionally unauthorized and violate Presidential voters’ rights to state legislative post-election certification. Article II of the Constitution establishes a non-delegable process where at least state legislative post-election certification of the state’s Presidential electors is constitutionally required for Presidential elector votes to be counted in the election of the President and Vice President. In contradiction, the federal laws, particularly 3 U.S.C. §§ 5 and 6, establish a different process where Presidential electors are designated by the Governor of each Defendant State without state legislative post-election certification. Then, 3 U.S.C. § 15 authorizes the Vice President and Congress to count those votes in contradiction of the constitutional obligation to only count votes of Presidential electors who have state legislative post-election certification.
Further, the Defendant States have legally acquiesced to the federal laws by enacting statutes transferring post-election certification from the state legislatures to state executive branch officials: Ariz. Rev. Stat.§ 16-212 (B) (Arizona Secretary of State), Ga. Code Ann.§ 21-2-499 (B) (Georgia Secretary of State and Governor), Mich. Comp. Laws Ann.§ 168.46 (Michigan State Board of Canvassers and Governor), Wis. Stat.§ 7.70 (5) (b) (Wisconsin Elections Commission); and 25 Pa. Cons. Stat.§ 3166 (Secretary of Commonwealth and Governor).These state laws also violate Article II which establishes the state legislative prerogative to post-election certification of presidential votes and presidential electors.
Here is the language from Article II:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.
Readers may decide whether Article II establishes a "non-delegable process" that prohibits "enacting statutes transferring post-election certification from the state legislatures to state executive branch officials." Here is what Judge Boasberg said about it [citations and cites to record omitted]:
In addition to being filed on behalf of Plaintiffs without standing and (at least as to the state Defendants) in the wrong court and with no effort to even serve their adversaries, the suit rests on a fundamental and obvious misreading of the Constitution. It would be risible were its target not so grave: the undermining of a democratic election for President of the United States.
Plaintiffs somehow interpret this straightforward passage to mean that state legislatures alone must certify Presidential votes and Presidential electors after each election, and that Governors or other entities have no constitutionally permitted role. As a result, state statutes that delegate the certification to the Secretary of State or the Governor or anyone else are invalid. Id. That, however, is not at all what Article II says. The above quoted language makes manifest that a state appoints electors in “such Manner as the Legislature thereof may direct.” So if the legislature directs that the Governor, Secretary of State, or other executive-branch entity shall make the certification, that is entirely constitutional.
Plaintiffs readily acknowledge that their position also means that the Supreme Court’s decisions in Bush v. Gore, and Texas v. Pennsylvania, “are in constitutional error.” They do not, however, explain how this District Court has authority to disregard Supreme Court precedent.
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