Courts to Pass on Trump's Hail Mary?

Thursday, November 12, 2020

Richard Hasen of the Atlantic asks and answers a question I have had ever since I heard about the basis of President Trump's lawsuit to prevent Pennsylvania from certifying its election results:

Was it accurate, can he catch it, and was it thrown on time? (Image by Keith Johnston, via Unsplash, license.)
The most recent complaint filed in federal court in Pennsylvania amounts to virtually nothing. Its core idea, that the different procedures for voting by mail and voting in person constitute an equal-protection violation, is ludicrous.

First, the differences between mail-in and absentee voting were obvious for months and nothing prevented the Trump campaign from suing earlier over this; a late suit now is barred by a legal doctrine called laches, which says that you cannot simply wait until after an election you don't win to sue over an election problem you could see beforehand.

Further, having different procedures for mail-in and in-person balloting does not create an equal-protection violation. If this claim succeeds, it would mean that voting was unconstitutional across the entire country. The claim is especially weak when voters had the choice to vote using either system. The other claims in the complaint are mostly retreads of issues that have been rejected legally, factually, or both in other lawsuits. There has been no proof of widespread fraud. [link in original, bold added]
I am not an attorney, and I seem to recall that part of the lawsuit might be premised on the Governor changing some election procedures by edict, under cover of the pandemic. (That sounds like a stronger complaint, but even here, everyone knew about this ahead of the election. And frankly, changing rules for an election was just one of many things that governor and many others pulled that ought to have been taken up well before the election.)

In any event, I recall the issue of mailing in ballots -- and otherwise having third parties handling ballots -- coming up in the lead-in to this election and wondering why Republicans -- who plausibly lost House seats in California due to this in '18 -- weren't very loudly raising the issue. I can only conclude (a) it's not really an issue, (b) they blew it, or (c) they were corrupt enough to want to use such an opportunity themselves.

None of these is good.

Again, I am not an attorney and I have not been following this story very closely, but absent a solid argument that laws in place weren't being followed or strong evidence of widespread fraud, I have to agree that Trump hasn't a case in Pennsylvania. (But see the P.S.)

I voted against Biden and the Democrats and -- with control of the Senate not settled -- hardly relish this outcome. But if the lawsuit is as baseless as this article makes it sound, that would come as little surprise: Trump's trademark seat-of-the-pants speaking and "debating" styles, and overreliance on executive orders are part of a bigger, unprincipled and pragmatist pattern.

Trump's pugilism and his evasiveness regarding the pandemic excited enough animosity to turn out millions of angry voters, and yet the election was still close. (That says something about what a weak candidate Joe Biden was and what a poor platform the Democrats ran on.) And now, his lack of principles, organization, and long-range thinking may well prove to be the straw that broke the camel's back.

-- CAV

P.S. Shortly after writing the above, I recalled a Federalist piece (HT: Scott Holleran) indicating that the Democrats made lots of questionable changes to the way the election was to be run in the months before.

The article also discusses legal maneuvering in response to same. Perhaps Hasen's objections don't apply to some or any of this, but I haven't time to pursue the question further at the moment.

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