Things equity does not pick up (
by Steve Timmer
Sep 11, 2016, 1:00 PM

Equity will not stoop to pick up pins

Update, 9/12: The Court went with the laches argument.

One of the great things about law school (and there are many; I loved law school) was being introduced to equitable maxims. There is a pithy and often funny equitable maxim for almost any proposition you could advance. I think they stand as a stalwart defense to the charge that the legal profession has no sense of humor. Creating new equitable maxims that apply to events in the news is a great lawyer drinking game. (You can play, too. Just Google “equitable maxims” to get started.)

The maxim above is one of my all-time favorites. It has sadly fallen into disuse, probably sometime in the early nineteenth century, or maybe earlier. But it means, of course: Don’t bother us with the small stuff.

The maxim is certainly applicable to the suit brought against the RPM and Secretary of State Steve Simon to excise the Trump-Pence ticket from the Minnesota ballot.

As I am sure most of you are aware, Ken Martin and the DFL have filed a petition with the Minnesota Supreme Court to strike the Trump-Pence ticket from the ballot in Minnesota over how the RPM selected not its presidential electors, but the alternates to those electors: the B team.

It’s really a party affair and doesn’t concern persons outside the party in any material way — make that any way — and it has absolutely no chance of affecting the outcome of the election.

Each party chooses presidential electors to vote in the electoral college if its candidate wins the state. It’s a job given to the party faithful; it’s entirely ceremonial, really. (Maybe even ceremonious.)

The petition, just filed, has the potential to cause multiple problems for voters and election officials, due to the logistics of printing ballots and conducting early and absentee voting, etc. So really, everyone, not just Republicans, have a dog in this fight, just not the way the DFL suggests.

The first hurdle that the suit will have to clear is standing [to sue]. Who are you, and why are you here in court? How have you been harmed?

Since the DFL suit is in the branch of jurisprudence we call equity, one of the next considerations will undoubtedly be a doctrine known as laches. It’s one of the ways a court, sitting in equity, can knock the rough edges off things and decline to grant a requested remedy because the action was brought just too late.

A court will also “weigh the equities” here: the trivial matter of which alternate elector won’t vote in the electoral college (because Clinton is going to win in Minnesota, anyway) if the primary elector has the flu that day, on the one hand, and massive expense to the state and counties, and potential disruption of the elections for voters on the other.

Gee, it’s a close case. Right?

One of the things that really great lawyers do sometimes is talk their clients out of filing a lawsuit. When you have a client who has his/her/its blood up and wants to let you off the leash, it’s hard advice to give. I like to think, though, it is the advice I would have given in this circumstance. They’re just pins after all.

Wouldn’t it be better to dedicate the money for the lawsuit to some great independent expenditure ads for DFLers in swing House districts?

Addendum: And never mind, of course, and as Professor David Schultz is quoted in the link above, that no court wants to be in charge of a political decision, especially in the wake of Bush v. Gore.

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