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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