28th November 2020
The Trump campaign has lost its appeal from the Pennsylvania court to the federal appeals court.
The judgment, which was published overnight, is here.
You should take the time to read the decision: it is clear, accessible, and well structured.
It not only decides the case on the narrow ground of the appeal but also on other possible grounds.
On each point, the law and the (lack of) evidence are set out so as to make the judgment not only persuasive but compelling.
There are even quotable general statements which put the Trump campaign right back in its (ballot) box:
“Free, fair elections are the lifeblood of our democracy. Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here.”
“Voters, not lawyers, choose the President. Ballots, not briefs, decide elections. The ballots here are governed by Pennsylvania election law.”
“Seeking to turn those state-law claims into federal ones, the Campaign claims discrimination. But its alchemy cannot transmute lead into gold.”
And so on.
It is a judgment to enjoy and indeed to savour.
But for many the remarkable thing is that the judge who wrote the decision is a Trump appointee.
Surely, the thought goes, this is in need of explanation.
The reasoning judgment itself shows a federal appeals judge who takes States’ rights seriously and is anxious about federal overreach – and these qualities are not unusual for a conservative judge.
These is the very jurisprudential approach that the Republicans are seeking to promote with their appointments to the federal bench.
The key fact here is that taking such principles seriously meant that a judge (and a court) went against Trump
(In contrast, a conservative judge emphatically wanting to extend the reach of federal power would have been a more remarkable and unusual thing.)
The judgment is not extraordinary in another sense.
The political inclination of a judge can only take her or him so far in defiance of the law and the facts.
If there is no law and no facts, only the most partisan of judges can, to invoke a phrase, ‘transmute lead into gold’.
Yes, many do have a sinking feeling that there are justices currently on the Supreme Court of the United States who would strain any case so as to come to a decision that would favour Donald Trump.
And the existence of that sinking feeling indicates a wider concern about the hyper-partisanship in the law and politics of the United States.
But such hyper-partisanship is, even in 2020, exceptional.
And this judgment is a refreshing and welcome reminder of this.
A cautious, attention-shunnng court could have given a judgment with the same effect but on technical and (frankly) unreadable grounds.
(Or, it would seem, the court did not even need to issue a judgment at all in this particular case, see this thread here.)
The court chose to hand down this very readable judgment instead.
This judgment perhaps tells us two things about the relationship about law and politics in the United States.
First, that there is a limit to hyper-partisanship and the cult of Trump.
Second, there are federal appeal judges that take conservative jurisprudence seriously – even if they do not take (supposedly) conservative campaign law suits seriously.
And it is the latter that will be of lasting legal and political significance.
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