What marks all three of these high-profile cases is not just the abject failure of McKenna's legal arguments, but the way he confidently doubled-down on these failed arguments in public. (These were also legal battles that I confidently and correctly predicted he would lose.) And it's a pattern that McKenna is repeating again by quixotically sticking to his office's obviously weak argument in defense of I-1053's supermajority requirement:
If they were to rule on the constitutionality I think they would uphold it. The opponents of two-thirds ... are hanging their case on a few words in the state constitution that refer to the requirement that a majority of legislators be present in order to pass legislation.
We understand that very clearly. What they [the founding fathers] are saying is if you’ve got 49 state Senators, you can’t have only 20 of them present and pass a law by a vote of 11 to nine. They’re saying you have to have a majority present and then you can have a vote, and then a majority have to vote for it, a majority of the legislature. So, I think that’s what that clearly means. And it was not intended to be a ceiling on a voting requirement to pass bills.
Honestly, that's just plain stupid. Gerberding v. Monroe is a goddamn roadmap for deciding LEV v. State. If the court rules on the constitutionality of I-1053 (and I'm not confident that our popularly elected justices won't once again hide behind justiciability) it would have no choice but to toss the fucker out.
So if the merits of this case are so obvious to all but the most partisan of partisans, what explains McKenna's laughable argument? Surely, he's read Gerberding. He can see the parallels as well as I. So why his public adherence to a legal argument that the court has already rejected?
As I see it, there are two possibilities: Either he's a very crappy lawyer who doesn't understand how weak his legal argument is, or he's just being, for want of a better word, lawyerly. That is, McKenna knows his argument is weak, and that he's not likely to prevail, but he chooses to defend his position in the court of public opinion as stubbornly as he chooses to defend it in a court of law.
Of course, it's a lawyer's job to defend his client. So I suppose you could just say that McKenna is doing his job, however poorly. But if that is the case then he is also choosing to deceive the media and the voters by confidently proclaiming legal arguments he doesn't truly believe will hold much weight in court.