What a surprise. Unelected federal judges sided with Jill Stein to undermine Michigan’s state election laws governing recounts while the elected state court sided with Republicans seeking to stop the recount.
As we reported on Monday, a lawless federal district judge nullified Michigan’s recount laws and then took the unprecedented step of quite literally legislating from the bench. The judge demanded that Michigan marshal resources for a recount on behalf of a candidate who should have no standing in court. Late Tuesday night, the Sixth Circuit Court of Appeals, in a 2-1 decision, denied an emergency motion from state officials to halt the district court’s order for a recount.
Writing for the majority, Judge Eric Clay, a Democrat appointee, completely bought into District Judge Mark Goldsmith’s argument that Michigan’s two day waiting period for the recount (after the decision of the state’s Board of Canvassers) was unconstitutional:
"If the recount could not be completed by the federal deadline, the right to a recount provided under Michigan law would have been effectively worthless. Facing the potential that Plaintiffs’ state recount right may have been deprived entirely by the waiting period law, we cannot say that the district court abused its discretion in determining that Plaintiffs would suffer irreparable harm without a TRO," wrote Judge Clay who was joined by Bernice Donald.
Clay ignored the fact that Jill Stein didn’t concoct this scheme until weeks after the election and has no right to wait until the last minute and then cry foul.
Judge David McKeague, a George W. Bush appointee, dissented and called out the district judge for legislating from the bench along the lines we have done in this column. He went full Scalia-beast mode on his colleagues:
So, stepping back to behold this picture with perspective, we find that, even though the Constitution recognizes the states’ clear prerogative to regulate election processes and to thereby ensure they are accompanied by fairness and order, not chaos, see Ohio Democratic Party, 834 F.3d at 626–27; and even though a temporary restraining order is an extraordinary remedy designed for the limited purpose of preserving the status quo (not demolishing it) pending further proceedings on the merits; and even though plaintiff Stein was unable to muster even the barest showing of likelihood of success and irreparable harm; and even though state court proceedings to ensure the fairness of any recount are currently pending and poised to address any demonstrated need for relief, a district judge has seen fit to deploy the judicial power of the federal sovereign to intrude upon proceedings under state law that are traditionally entrusted to the states … simply because he thinks, in regard to a statutory two-day period (!), that he has a better idea than the elected representatives of the people of the State of Michigan … and because he can.
Moreover, in manifest display of partiality and overreach, the district court purports to have granted relief even more expansive than was requested. Whereas plaintiff Stein asked the court to enjoin any delay in commencement of the recount prior to December 7 (when the recount otherwise would have been commenced in accordance with state law), the district court purports to have not only ordered immediate commencement of the recount, but continuation thereof “until further order of this Court.” And not only that: the district court further defined the required continuation as including the requirement that “all governmental units participating in the recount to assemble necessary staff to work sufficient hours to assure that the recount is completed in time to comply with the safe harbor provision of 3 U.S.C. § 5.” R. 16, Temporary Restraining Order at 7–8, Page ID 678–79.
To this, I can only respond, “Astounding!” “Just who do we think we are?” Obergefell v. Hodges, 135 S.Ct. 2584, 2612 (2015) (Roberts, J. Dissenting)
Indeed! Thank God there are at least a few sitting federal judges willing to call a spade a spade.
As if on cue, at the same time the Sixth Circuit upheld the lawlessness, the Michigan Court of Appeals — the intermediate-level appellate court of the state — sided with state law. The three-judge panel advised the Michigan Board of State Canvassers to immediately halt the recount. They cited many of the same objections as Sixth Circuit Judge McKeague lodged in his dissent; namely, that Stein lacks standing as an aggrieved party, she failed to supply a scintilla of evidence proving voter fraud, and that the state did everything it could to comply with the law.
At this point, Attorney General Bill Schuette is fighting back on all fronts. He is appealing the Sixth Circuit’s three-judge panel ruling to the full en banc panel and has also filed a motion with federal district Judge Mark Goldsmith to dissolve the temporary restraining order in light of the state court’s ruling.
This case is very enlightening. It demonstrates the importance of removing litigation against state election laws from federal courts and transferring it to state courts. State judges are elected and should decide issues that have been manifestly within the jurisdiction of state law since our founding. It is heartening to see the state judges push back against Stein’s attorney, especially when he suggested the state court would be in violation of the federal district judge’s order. "Would you serve the jail time for us?" asked an incredulous Judge Peter O'Connell to Stein’s attorney.
That’s the spirit!