I’ll be away on holiday this week, so blogging will probably be lighter than usual. But I can’t resist the chance to comment on the latest developments around the results of the United States presidential election, particularly in Pennsylvania.
Pennsylvania was the subject of a lot of attention during the campaign – not just from the candidates but also from psephologists. It was the state that seemed more likely than any other to be the “tipping point”, to make the difference between winning and losing. As it happened, it wasn’t (Wisconsin was); nor was it one of the three closest states that Joe Biden won. On the latest figures he beat Donald Trump there by 81,660 votes, winning 50.6% of the two-party vote.
But perhaps because of the attention it got beforehand, or because it’s close to Washington, or perhaps just because its twenty electoral college votes are such a desirable target, Pennsylvania seems to be particularly exercising the minds of Trump’s legal team, not to mention its associated conspiracy theorists.
So they sued to try to halt certification of its results, although on exactly what basis is not clear. As I mentioned last week, the federal District Court threw out the suit in no uncertain terms; among other things, judge Matthew Brann (himself a Republican) denied the Trump campaign leave to amend its pleadings a second time, although he considered and rejected the claims it proposed to make anyway.
The campaign appealed to the Court of Appeals on that narrow point, also seeking an injunction to prevent results being certified. The three-judge panel (all, as it happens, Republican appointees) was not as eloquent as judge Brann, but its judgement, delivered on Friday, is equally damning. It quotes precedent to say that leave to amend should be granted unless that “would be futile or inequitable,” and then states baldly that “Here, the Campaign’s request fails as both inequitable and futile.”
The judgement exposes the various claims as bare assertions, devoid of evidence or serious legal argument. Rejecting the request for an injunction, it sums up:
[The Trump] Campaign cannot win this lawsuit. It conceded that it is not alleging election fraud. It has already raised and lost most of these state-law issues, and it cannot relitigate them here. It cites no federal authority regulating poll watchers or notice and cure. It alleges no specific discrimination. And it does not contest that it lacks standing under the Elections and Electors Clauses. These claims cannot succeed.
The Trump team promises to now take the case to the Supreme Court, apparently hoping for some magic from its newly solid conservative majority. But it’s hard to imagine even in principle what that magic could be. Even if the District Court was ordered to allow pleadings to be amended they would still lack merit, and even if they didn’t they would still only be challenging a few thousand postal votes, an order of magnitude less than the number that Trump needs.
And even if some fit of judicial madness resulted in Pennsylvania’s votes for Biden being thrown out, it would still only be one state – nowhere near enough.
Elsewhere, the rest of the process moves forward in its typical creaky fashion. There are apparently still a lot of votes to count in New York (perhaps a million and a half of them), but the other states seem to be all complete or nearly so. Wisconsin recounted the two counties that the Trump campaign had requested, resulting in a net gain to Biden of 87 votes.
Next week will see the “safe harbor” deadline (8 December), which gives state results a degree of immunity from challenge, and on 14 December the members of the electoral college will vote to choose a president and vice-president. Biden and his running mate, Kamala Harris, will be sworn in on 20 January.
Underneath the speculative allegations and unfounded arguments in the various Trump lawsuits there lies a kernel of truth: that the US electoral system is ramshackle, outmoded and vulnerable to mistakes or even subversion. But while both parties must take a share of the blame for things having reached such a state, in recent years it is the Republicans who have been much more resistant to reform and modernisation.
If the last few weeks have changed their minds on the desirability of fixing things up, the Biden administration should embrace that enthusiasm and make electoral reform a priority. But don’t hold your breath.