Odysseus, Avocados, and Election Litigation Timing


On Sunday, December 20, 2020, six days after the Electoral College met and cast 306 votes to (once again) confirm that Joe Biden is the President-elect and fifty-three days after the general election, the Trump campaign filed a petition for certiorari in the U.S. Supreme Court seeking review of various decisions of the Pennsylvania Supreme Court. In 2020, that quixotic action passes for good news, because it suggests that, at least for the moment, Donald Trump continues to use the courts as the primary venue for his effort to overturn an election he lost by seven million votes and an Electoral College margin identical to the one he termed a “landslide” when it favored him four years ago. While repeatedly filing baseless lawsuits and appeals may undermine democracy in the long run, it is less destructive than the other options Trump is reported to have recently considered—like declaring martial law to “rerun” the election.

That is not to say that this latest petition has anything to recommend it. It asserts that the Pennsylvania Supreme Court decisions allowing for expanded voting by mail in light of the pandemic usurped the role of the state legislature, relying on a radical and lawless theory that Dean Amar has argued persuasively (both here on Verdict and in a draft of a scholarly article) would turn federalism on its head. Moreover, even if a court were to find that the Pennsylvania Supreme Court’s reading of state law somehow violated the federal Constitution, it hardly follows that the proper remedy would be to discount millions of votes cast in reliance on its rulings.

Nor would doing so affect the result of the election—even just in Pennsylvania. The petition claims that “over 110,000 ballots were illegally counted,” which supposedly changed the outcome because the Pennsylvania margin between Biden and Trump was 80,558. Let us accept those claims for the sake of argument. Note also that because Trump discouraged Republicans from voting by mail, Biden won about three in four of the Pennsylvania ballots cast by mail. If we discount all 110,000 ballots supposedly cast illegally, we will be discounting three quarters of that number for Biden and one quarter for Trump. The result will reduce Biden’s margin by half of 110,000, which is 55,000. That still leaves Biden winning Pennsylvania by over 25,000 votes. Trump’s lawyers are not just bad at law; they are also bad at math.

There is still more arithmetic in the way of Trump’s filing. Even if the Supreme Court were to throw out Pennsylvania’s votes and permit the state’s legislature to retroactively confer some legal authority on the self-appointed fake electors who voted for Trump last week, Biden would still have 286 votes in the Electoral College, enough for a clear victory.

Finally, there is the matter of timing, on which I shall focus here. Trump’s petition claims that the Pennsylvania cases are not moot because Biden has not yet been inaugurated. That is dubious, but even if true, the petition offers no reason why Trump and his team waited until nearly a week after the Electoral College met in mid-December to challenge state court rulings handed down in October and November. If ever there is a case for disallowing a petition based on the equitable doctrine of laches—which denies relief to one who unreasonably delayed in bringing a claim—this is it.

Indeed, laches has already played an important role in the 2020 election litigation. Late last month, the Pennsylvania Supreme Court invoked laches to reject a lawsuit by Trump allies led by Congressman Mike Kelly, who sought to invalidate a state law permitting mail-in voting enacted by the Republican-controlled state legislature in 2019. Likewise, just last week the Wisconsin Supreme Court rejected some of the Trump campaign’s claims to overturn that state’s election based on laches.

Between a Rock and a Hard Place

In response to the assertion of the laches defense, Trump’s campaign and its allies have sometimes offered a superficially sensible rejoinder: had they filed earlier, they complain, their claims would have been dismissed as not yet ripe. After all, state and federal courts in the U.S. do not hear cases that are merely hypothetical, instead waiting until legal conflict is clear.

When voiced by Trump and his apologists, the complaint rings hollow because they are obviously such self-serving opportunists. Before the election, Trump proclaimed the importance of having a winner declared on election night; now Trump’s campaign tells the Supreme Court that litigation over the outcome can proceed until the moment of inauguration. Before the election, Republican-controlled state legislatures refused to allow early counting of mail-in ballots, with the predictable (and predicted) result that an early “red mirage” of election-day ballots for Trump gave way to a “blue shift” towards Biden, to which Trump and his conspiracy theorizing supporters pointed as supposed evidence of something nefarious. The invocation of laches and other equitable doctrines to estop hypocrites like Trump and his lawyers is perfectly justified.

Nonetheless, the damned-if-you-do-damned-if-you-don’t concern may be warranted in other circumstances. Courts ought not to establish timing rules that require parties and attorneys to emulate Odysseus navigating between the Scylla of ripeness and the Charybdis of laches. Or to change the metaphor, litigation should not be an avocado that goes from hard to rotten with only the briefest window when it is edible. Too-exacting timing rules exemplify what Roscoe Pound famously and rightly derided as the “sporting theory of justice.”

Relax Ripeness Rules

Which set of restrictions should give way? In the election context, permitting later lawsuits poses a much greater danger than permitting earlier ones.

Suppose a question arises whether a mailed ballot can be counted as valid if the voter’s signature on the outer envelope has not been matched to prior records by an election official. If a court resolves that question early, election officials will follow whatever procedures the court deems required. True, the judicial decision may end up being unnecessary if, say, the margin of victory in the election exceeds the number of mailed ballots cast (as frequently occurs in non-pandemic times). But an unnecessary decision does relatively little harm.

By contrast, resolving the same question late risks disenfranchising voters who acted in good faith based on the law as they reasonably understood it at the time. An after-the-fact decision that some number of ballots cast in good faith shall not be counted also poses a greater risk of appearing partisan, because the judges will know which candidate benefits from their decision. Put simply, it is far better to relax ripeness rules and risk unnecessary adjudications than to discard the doctrine of laches and risk widespread disenfranchisement and the undermining of confidence in fair elections.

Outside the election context, the tradeoff between ripeness and laches may not always be as clear-cut, but there too, it makes more sense to relax the ripeness requirements—and for broadly speaking the same reason: advance guidance allows compliance, facilitates planning, and conserves resources.

Consider the Supreme Court’s 2012 decision upholding the Affordable Care Act (ACA) against the first and potentially most potent constitutional challenge to it. There was a threshold timing question in the case, because a federal statute forbids courts from issuing injunctions against the collection of a tax—and the so-called individual mandate of the ACA was enforced via a tax. Under the most straightforward reading of the law, to challenge the mandate people would first need to refuse to purchase health insurance, then pay the resulting tax penalty, and only then sue in the tax court for a refund on the ground that the obligation was unconstitutional. Yet that procedure would have been incredibly wasteful, because individuals, doctors, hospitals, and health insurers needed to know what to do before the ACA went into effect. Literally billions of dollars might be wasted gearing up to comply or not comply with the ACA based on the uncertainty of having to wait a year or more for an answer—as seemingly required by the statute. Accordingly, both the law’s challengers and the government urged the justices to hear the case and essentially ignore the anti-injunction law—which is more or less what the Court did. Although the justices divided bitterly over the merits, they unanimously agreed to hear the case early enough for everyone to make plans in response to the ruling.

Unfortunately, the Court is not always so willing to relax its timing rules. Indeed, just last week, a 6-3 majority dismissed a challenge to the Trump administration’s plan to subtract undocumented immigrants from a state’s population for purposes of congressional apportionment. The plaintiffs made a powerful argument that the plan violates constitutional and statutory provisions that apportion representation based on the “whole number” of persons residing in each state. Nonetheless, the majority said that the case was not ripe, because there had not yet been any apportionment (and the administration probably would not have time to finalize its plans before leaving office). Yet as Justice Breyer noted in dissent, “waiting to adjudicate plaintiffs’ claims until after the President submits his tabulation to Congress . . . risks needless and costly delays in apportionment” (emphasis in original).

Dismissing a case on ripeness grounds typically risks such delays. Although there are abusive litigants (like Donald Trump), most parties that incur the expense and bother of bringing lawsuits can be assumed to have some substantial reason for wanting to know their legal rights and duties when they do.

Accordingly, the Court should relax the ripeness rules across the board. A Court that was willing to find a way around the express statutory language that might have barred early litigation in the 2012 ACA challenge should have even less difficulty finding a way around the ripeness doctrine—a set of rules of its own devising. The relevant constitutional language that ostensibly grounds the ripeness doctrine can be found in Article III, which limits federal courts to deciding “cases” and “controversies.” Surely those words are sufficiently capacious to permit adjudication at a point early enough to do some good.

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