Andrew C. McCarthy
Wed, November 18, 2020, 4:54 PM CST
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”).
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...
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