Fifth Circuit Court of Appeals Cites Society

Judge Stephen A. Higginson, of the U.S. Court of Appeals for the Fifth Circuit, recently cited an article from the Society for the Rule of Law written by charter member Rich Bernstein.

While the court denied a petition for panel rehearing, Judge Higginson voted in favor of rehearing the matter. He lamented that his colleagues did not adopt the argument put forth by Rich Bernstein and Adam Unikowsky.

Mr. Bernstein pointed out in his article that the Fifth Circuit’s ruling “contradicts how Article II, the Twelfth Amendment, and the federal statutes implementing” voting laws mandate the counting of electoral votes.

Judge Higginson’s dissent, which was in favor of rehearing the matter, begins on page 26, and includes the following language:

We benefit from lawyer insight and criticism. Though we receive amicus curiae briefs less frequently than the Supreme Court, they provide primary opportunity for non-party lawyers to give insight, albeit with stringent requirements. It is rarer that topflight lawyers,[FN1] like Unikowsky, have time to offer scholarly critique of a case neither he, nor Bernstein, was retained to handle …

[T]his case provides opportunity for me to acknowledge lawyers like Unikowsky and Bernstein, whose vigilant criticism of our court’s work product should help the growth of the law.

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[FN1] Unikowsky, in turn, credits Attorney Richard Bernstein’s analysis for the Society for the Rule of Law. Richard Bernstein, The Fifth Circuit Was Wrong–Counting Timely-Cast Remote Votes That Are Received After Election Day is as Old as the Founding, Soc’y for the Rule of L. (Nov. 1, 2024), https://societyfortheruleoflaw.org/fifth-circuit-wrong/.

You can read the full opinion here.

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