22nd November 2020
The federal court in Pennsylvania has dismissed the claim by the lawyers for President Donald Trump ‘with prejudice’ (a delightful legal phrase).
The judgment is well worth reading and there are certain passages that will stand out. In particular these two paragraphs are striking:
“Here, leveling up to address the alleged cancellation of Plaintiffs’ votes would be easy; the simple answer is that their votes would be counted. But Plaintiffs do not ask to level up. Rather, they seek to level down, and in doing so, they ask the Court to violate the rights of over 6.8 million Americans. It is not in the power of this Court to violate the Constitution. “The disenfranchisement of even one person validly exercising his right to vote is an extremely serious matter.” “To the extent that a citizen’s right to vote is debased, he is that much less a citizen.”
“Granting Plaintiffs’ requested relief would necessarily require invalidating the ballots of every person who voted in Pennsylvania. Because this Court has no authority to take away the right to vote of even a single person, let alone millions of citizens, it cannot grant Plaintiffs’ requested relief.”
And this footnote is a thing of utter beauty:
“Curiously, Plaintiffs now claim that they seek only to enjoin certification of the presidential election results. They suggest that their requested relief would thus not interfere with other election results in the state. But even if it were logically possible to hold Pennsylvania’s electoral system both constitutional and unconstitutional at the same time, the Court would not do so.”
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Of course, the Trump campaign has little serious legal strategy in all this.
The intention of the Trump campaign appears to be two-fold.
First, to get a case somehow someway before the Supreme Court where, presumably with the magic of partisanship, the conservative justices will fashion a win for Trump.
And second, to make as much political and media noise as possible so as to maintain the fiction that Trump was robbed of an election result.
I am not an American lawyer, but it is hard to see how the Trump team can get much further with their legal claims.
Unlike Bush v Gore there is no serious legal issue outstanding in respect of an ongoing count/recount.
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Yet as a consequence of the current tactics of the Trump campaign, there will be a lingering and destabilising sense among Trump supporters of illegitimacy over the presidential election.
No court judgment can address, still less cure, such a political reaction.
Trump’s hyper-partisan supporters will no doubt dismiss the judgment, with their own prejudice (in the non-legal sense).
That is unfortunate, and it will be a political problem that will not go away easily.
But any court can only do so much.
And here it is heartening that the court has done what it can.
The legal function has been performed, and what is left is now politics.
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One final observation can be fairly made on all this.
For many years conservatives have complained of ‘activist’ and ‘interventionist’ judges and they have (rhetorically, at least) sided with ‘the people’ against the courts.
And now those same conservatives are demanding for active judicial intervention against the people, to the extent that thousands if not millions would be suddenly disenfranchised by court orders.
This is a paradox, if not a contradiction.
Do conservatives want an ‘activist’ and ‘interventionist’ judiciary or not?
They should make their minds up.
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“For many years conservatives have complained of ‘activist’ and ‘interventionist’ judges and they have (rhetorically, at least) sided with ‘the people’ against the courts.
And now those same conservatives are demanding for active judicial intervention against the people, to the extent that thousands if not millions would be suddenly disenfranchised by court orders.”
Was this not similarly experienced in the UK in the R (Miller) v the Government Brexit-related court cases, with Conservatives/Leavers screaming foul play/bias over every decision against them, united by a wall of convenient silence when they won?
Does anyone seriously believe the current ‘review’ of the Supreme Court would be happening had the UKSC’s rulings gone the government’s way?
This is a measure of this Executive’s determination to mould the ‘constitution’ for their convenience.
Splendidly moderate – yet tranchant – comment!
Thank you for your excellent work, DAG.
The judge is Republican, graduate of Notre Dame,. Federalist Society, gun rights supporter. Just like Trump’s appointees on the SC. Trump hasn’t a hope.
“And second, to make as much political and media noise as possible so as to maintain the fiction that Trump was robbed of an election result.”
Reminds me of the “Dolchstoßlegende” that brought about you know who.
In this excellent post, the passage I think most worrying is the one about the “lingering and destabilising sense among Trump supporters of illegitimacy over the presidential election”. However, to get anywhere politically in terms of the kind of constitutional outrage that Trump and his supporters envisage, there would surely have to be at least some support from among some of the organs of the state – from some senior politicians, say, plus elements of the bureaucracy, the armed forces, the courts, business. The Trumpian efforts seem so outlandish and unconstitutional as to make that highly unlikely – though the very fact of the Trump presidency must give grounds for caution.
The problem here is that there appears to be considerable support among Republican Senators for tjis evidenced by their regular to publicly accept the election result and comments that every legal vote must be counted without any qualification on this. They would be very hapoy it seems that their base feels robbed by this election despite there being zero evidence for this.
> Do conservatives want an ‘activist’ and ‘interventionist’ judiciary or not?
I fear that this is not a question that current events in the USA can address. These people are quite uninterested in any sort of judiciary, except inasmuch it supports their overriding goal: power. Truth and law are not even tools, they are simply window-dressing for the maintenance of power. And these are not “conservatives” in the sense we used to understand, any more than the brownshirts were “socialists”.
As a non-lawyer reading the judgement (written in full legalese) I interpret the judge’s description of the plaintiffs actions as a ‘comedy of errors’ and summarise his words to them as ‘you’re having a laugh!’
It would be nice to think that such a crushing judgement would do something to dent the armour of grievance of the hyper-partisan Trumpers. But it is striking that the unanimous judgement of our Supreme Court in the UK prorogation case did little to silence the Brexit Ultras. The PM said in Parliament that he thought the judgement “wrong”, and the whole episode strengthened the view within Vote Leave (who are running the country) that the courts need to be neutered.
“And these are not “conservatives” in the sense we used to understand”
Unfortunately, this is typical behaviour of Conservatives (with a Capital C) in the current sense…
Many thanks for the helpful link to Judge Brann’s Memo of Opinion. Enjoyable though it is to read, the Judge’s evisceration of Trump’s complaint doesn’t (as you say) actually de-rail Trump’s strategy of delegitimising Biden’s election. We may still be witnessing the end of the ‘American experiment’. The refusal of a presidential candidate to recognise the election of his opponent has happened once before in American history. And what happened then sets a disturbing precedent for what Trump may do in extremis. In 1876 following the presidential contest between Samuel Tilden (Dem) and Rutherford B Hayes (Rep), four States send rival slates of electors to Congress. A special tribunal was appointed and found for Hayes. Tilden objected and immediately began manoeuvring to obstruct the electoral count in Congress. He planned to delay the whole confirmation process until Inauguration Day, when the incumbent President (Ulysses S Grant – Rep) must step down. Tilden conceded two days before the appointed day in the face of Grant’s threat to declare martial law in New York (where rumour had it Tilden was going to be inaugurated) and to deploy regular US combat troops to enforce Hayes’ inauguration: not a good omen for 2021.
It is not intended that the court cases will be successful. The purpose of the court cases is to provide “covering fire” for the authorities who would wish, or might be persuaded, not to certify the results for their state.
This would then provide a second avenue for the Senators from those states to certify a different slate of electors to the electoral college, because simply defying a state certified decision would be very high risk and would almost certainly end up in the Supreme Court: its chances of success there are not none but are probably quite low.
But provide a “fig leaf” of cover by pointing to the court cases, even if dismissed in damming terms, and maybe not all hope is lost.
It’s a “low chance of success” strategy, but what alternative does the Trump campaign have?
If the complaint in any form come before the USSC, that Court’s integrity will be on trial.
”This is a paradox, if not a contradiction.
Do conservatives want an ‘activist’ and ‘interventionist’ judiciary or not?
They should make their minds up.”
Oh, they have made their minds up, they want whatever best suits their case in the circumstances, nothing more, nothing less.
Absolutely.
Whilst this shameless inconsistency, I think we need to be careful what we wish for in demanding consistency.
If we are honest, I think everyone is inconsistent to some degree when it suits them. And too much consistency is probably a bad thing, as it tends to inflexibility.
Ultimately what really matters here is not so much the hypocrisy of their methods, but the fact that they are doing it at all.
This judgment made fascinating reading giving an insight into how the US lawyers and court regard the Constitution with reverential awe on the on hand and on the other as blunt instrument to beat an opponent about the head. It also gave a fascinating insight into the gymnastic and creative abilities of the Trump lawyers with the facts and the law.
The name of one of the Individual Plaintiffs in this action is familiar: John Henry is the name of a mythical, folkloric, Afro-American strongman, a driver of steel pegs into rocks so that explosive charges may be placed……
’s campaign. On Friday, the state of Georgia certified the victory of Joe Biden after a hand recount of paper ballots confirmed the conclusion of the initial electronic count. Michigan lawmakers rejected the apparent attempt by President Trump to thwart the will of Michigan voters and select an illegitimate slate of electoral college electors. These developments, together with the outcomes in the rest of the nation, confirm that Joe Biden won the 2020 election and will become the h President of the United States,” Toomey said in a statement.