I wanted to address a few points before we move on to a discussion of “justiciability.” Some might lose sight of the coniferous forest because of a few deciduous trees. After all, most of the rest of the World realizes Russia stole the 2016 elections here. Still, I want to address these points.
1) In regard to standing, each person who voted for Secretary Clinton lost her or his right to vote because the margin of victory was obtained by illegal means. Each person who voted for Trump, unless she or he intended to vote for a puppet of Russia, also lost the right to vote. A harm was suffered by each voter. Not all voters were able to cast votes because of racially discriminatory practices such as cross-checking. Even those who were able to cast a ballot lost her or his right to vote because those votes were not counted in “swing” states.
2) In Baker v Carr 369 U.S. 186 (1962), the landmark One Person/One Vote case, individual voters brought the action.
3) I have cited as persuasive authority, for the position the Federal courts can order the 2016 election results void, Donohue v Board of Elections, 435 F.Supp.957 (E.D.N.Y. 1976). Several people “got their jollies” as they pointed out I had misspelled “Donohue” as “Donahue.” For that egregious error, I apologize—to Warren Donohue, one of the plaintiffs in that case.
4) I was mistaken as to the case history: in fact Donohue went up on appeal—and was affirmed at 559 F.2d 1202 (2d Cir. 1977). That means the case was not reversed.
5) Obviously the birther cases were handed down over 30 years after the decision in Donohue. Simply because the decision in one case is more recent than the decision in another case does not mean the earlier case is abrogated. The only case that appears to have given Donohue negative treatment is Cowan v Windeyer, 795 F.Supp 535 (N.D. N.Y. 1992), but that case considered whether the “amount in controversy for jurisdictional purposes should be measured strictly from the plaintiff’s perspective, without regard to the damage caused to any other party.” 795 F.Supp. at 537. That court “declined to follow” Donohue. That is not the same as abrogating a case. Another court declined to follow Cowan (Hairston v Home Loan and Investment Bank, 814 F.Supp. 180 (D.Mass. 1993). Another court declined to follow Hairston (Leszczynski v Allianz Insurance, 176 F.R.D. 659 (S.D.Fla 1997). No case overruled or abrogated Donohue.
6) This blog is not written with the same formality as would be a brief to be filed with a court. As two examples: I usually cite only the U.S. Reporter for a SCOTUS case, and there might be a few typos.
Tomorrow we shall move on to justiciability. Sorry about this rest area on the interstate of blog analysis.