Realistically speaking, the legal battle over the 2020 election is over. As I explained over the weekend, from President Trump’s perspective, that battle is beset by a fatal mismatch between (a) what his campaign is in a position to allege and prove, and (b) the remedy — i.e., the potential number of votes that could swing from Biden to Trump. That problem was already apparent last week, when the campaign filed its original complaint in the Williamsport federal court. It became insurmountable Sunday, when the campaign amended its complaint, stripping out the main fraud claims.
What is left of the lawsuit cannot conceivably change the result in Pennsylvania. For that reason, the court will probably not even rule on it — even if we assume for argument’s sake that the campaign and its two co-plaintiffs (voters residing in the Commonwealth) have standing to sue, which is doubtful. And, to repeat what I laid out over the weekend, without reversing the election result in Pennsylvania, the president has no chance to reverse the nationwide result (which would minimally require winning Pennsylvania plus two other states).
To some extent, the campaign has gotten a bad rap for dropping its main counts, which alleged that there were gross improprieties, amounting to fraud, in Pennsylvania’s tabulation of the vote. Abandoning these counts seemed inexplicable Sunday, given that the campaign was simultaneously alleging massive fraud on television.
In fact, there is an explanation. On Friday, the U.S. Court of Appeals for the Third Circuit issued a ruling that destroys the viability of those counts (and probably the remaining counts, too — I’ll come to that). In scrambling to respond to that ruling — which is binding on the federal district court where the campaign’s lawsuit is filed — the campaign shed the fraud-related counts. The lawyers should not be faulted for doing that. The fault lies in pressing ahead with a narrower suit that could not change the outcome of the race in Pennsylvania, even in the unlikely event that the campaign prevailed.
To cut to the chase, all that remains of the Trump campaign’s complaint is the claim that voters in pro-Trump counties were denied equal protection of law because mail-in voters in pro-Biden counties — mainly Philadelphia and Allegheny counties (Pittsburgh is in the latter) — were invited by election boards to cure defects in their ballots. Even if there were arguably merit to this claim (doubtful), it may only involve a few hundred votes, and certainly not more than a few thousand. That’s not enough. By current count, presumptive president-elect Biden leads President Trump by 83,000 votes. Since I’ve already made this point several times (see, e.g., here and here), perhaps it’s best to quote what the Third Circuit said just last Friday (my italics): For a party
to have standing to enjoin the counting of ballots . . . such votes would have to be sufficient in number to change the outcome of the election. . . . See, e.g., Sibley v. Alexander (“Even if the Court granted the requested relief, plaintiff would still fail to satisfy the redressability element of standing because enjoining defendants from casting the votes . . . would not change the outcome of the election”).
Even if a court were to ignore this fatal problem and entertain the campaign’s remaining claims, there are several other reasons why they would fail. Pennsylvania’s secretary of state argues that there is no equal protection violation because she advised all counties that they had the discretion to invite voters who’d submitted defective mail-in ballots to cure the defect. The fact that some counties availed themselves of this option does not mean the state violated the equal-protection rights of voters in counties that did not.
In addition, the Third Circuit reasoned that the Bush v. Gore equal-protection theory that the Trump campaign relies on is limited to the peculiar facts of that post-election recount scenario, and not really applicable to this one. More important, the Third Circuit held that equal-protection claims of the kind the Trump voters are raising are too non-specific and speculative to confer standing to sue.
Furthermore, there is, to repeat, that mismatch between the claimed injury and the remedy sought: Over what may be just a relative handful of ballots, the Trump campaign seeks to prevent the state from certifying its election result, which would disenfranchise 7 million voters — something no court would do, and which would result in the same kind of equal-protection harm (to lawful Biden and Trump voters) that the campaign complains of, except astronomically worse.
Putting the Trump campaign’s futile lawsuit aside for a moment, it is worth considering the Third Circuit opinion issued Friday, Bognet v. Secretary Commonwealth of Pennsylvania. While the claimants are different, the claims are largely duplicative of those in the case the Supreme Court has thus far declined to hear. Instead of the state Republican Party (the claimant in the Supreme Court case), the plaintiffs before the Third Circuit were a candidate for office and four voters.
These plaintiffs claim to have been harmed, mainly on equal-protection grounds, by the Pennsylvania supreme court’s rewrite of state law, which permitted county election boards to receive and count ballots for three days after Election Day. The proviso was that the ballots had to have been mailed on or before Election Day, though the state supreme court concocted a presumption in favor of a late-arriving ballot’s validity if its postmark was missing or illegible — which the plaintiffs also claim to be a violation of their equal-protection rights.
The Third Circuit brings us news of how negligible is the number of votes involved. Out of 7 million total ballots cast in the Commonwealth, the secretary of state reported to the court that only 9,383 were received statewide in the three days after November 3. Even if all of these were Biden votes (impossible) and the court voided all of them (it won’t), Trump would still be 73,000 votes short. Of the 9,383 late-arriving ballots, only 655 lack a legible postmark — accounting for less than 1 percent of Trump’s deficit (and about one-hundredth of a percent of the statewide vote).
Beyond that, in its ruling, the Third Circuit explains that there is no judicially cognizable federal right to force state or federal governments to comply with the law. This is just a “generalized grievance,” and legal standing requires showing an injury that is concrete and particular to the person making the complaint. The federal court would not assume that the state court usurped the state legislature’s constitutional power to set election rules, but if it did, the injured party would be the state legislature, not individual voters or candidates.
Furthermore, the Third Circuit found that there is no equal protection violation, based on the alleged “dilution” of timely votes, due to the state court’s three-day extension. The court noted that, in addition to Pennsylvania, 19 states and the District of Columbia permit the receipt of votes post-election. Voters, the court reasoned, do not suffer a cognizable harm based on what, for them, is a formalistic difference between whether post-election receipt is authorized by statute or by a ruling of the state’s highest court. And quite apart from how scant the number of late-arriving votes is, they affect all timely voters the same way — there is no concrete, individual injury.
Most significantly for present purposes, the Third Circuit stressed that even a clear “violation of state election laws by state officials or other unidentified third parties is not always amenable to a federal constitutional claim.” In the fraud-related counts the Trump campaign dropped over the weekend, it was alleging that federal rights of Trump voters were transgressed by the manner in which state officials in the cited counties enforced (or flouted) state law. After the Third Circuit’s ruling on Friday, the district court would not have entertained such claims, so the Trump legal team dropped them.
This caused some confusion in Trump lawyer Rudy Giuliani’s presentation to District Judge Matthew Brann on Tuesday in Williamsport. Giuliani continued to posit claims of statewide and nationwide fraud, but he ultimately conceded that the campaign’s Pennsylvania lawsuit is “not a fraud case.” There is an easy explanation for this seeming contradiction. The campaign is not retreating from its claims that the manner in which mail-in balloting was authorized, administered, and tabulated was fraudulent; it is tacitly acknowledging that these claims, as originally alleged in the complaint, would not survive the Third Circuit’s reasoning.
Finally, we should note that even as the Trump team was trying to make what’s left of its case in federal court, the Pennsylvania state supreme court, by a 5–2 vote, was rejecting the campaign’s claim that the state-law rights of Trump poll watchers to monitor the canvassing of ballots were violated. That claim was the gravamen of the federal fraud allegations (i.e., the restrictions on the poll watchers were said to have rendered them unable to police against fraud, which must therefore have happened). It was highly unlikely (especially after the Third Circuit decision) that Judge Brann was going to wade into that question of state law, and there is no way he would have second-guessed the ruling of the state’s highest court on the matter.
In the end, though, the main problem for President Trump continues to be math. There are not nearly enough ballots at issue in what remains of his lawsuit to alter the outcome of the voting in Pennsylvania. And without Pennsylvania, he cannot win the election by flipping other states — for which there is, in any event, no realistic prospect.
Something to Consider
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