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Trump’s threats to democracy are going nowhere in court

Trump lawyers have argued for the widescale disenfranchisement of voters, including in Pennsylvania. So far, they have failed to convince the nation’s courts.

The frivolous lawsuits reflect Trump’s enduring disregard for democratic values and further threaten to infect the American psyche by ceaselessly casting doubt on a fair election that Joe Biden won.

While the Supreme Court was silent in that regard Tuesday, other federal and state judges have penned warnings about the Trump campaign’s affront to public trust in elections. The opportunity for further appeals is dwindling, as Tuesday marked a “safe harbor” deadline for state certification of election tallies.

“Free, fair elections are the lifeblood of our democracy. Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here,” US appellate Judge Stephanos Bibas wrote last month, rejecting a Trump challenge to votes in Pennsylvania.

“Democracy depends on counting all lawful votes promptly and finally, not setting them aside without weighty proof,” added Bibas, a 2017 Trump appointee to the 3rd US Circuit Court of Appeals. “The public must have confidence that our Government honors and respects their votes.”

The Trump campaign and its surrogates have targeted states in which the election was close, but as Bibas observed the final tally was not that close in Pennsylvania: Biden won by roughly 81,000 votes among nearly 7 million cast.

Other state and federal judges hearing Trump challenges, for example in Wisconsin and Michigan, have similarly laced their opinions with concerns about the “unprecedented” and “breathtaking” requests to set aside the votes of millions of citizens who cast ballots believing they would count.

When a federal judge in Georgia on Monday dismissed a complaint brought by lawyer Sidney Powell, a Trump ally, the judge said the challengers wanted “perhaps the most extraordinary relief ever sought in any federal court in connection with an election. They want this Court to substitute its judgment for that of two and a half million Georgia voters who voted for Joe Biden, and this I am unwilling to do.”

Last Saturday, a panel of the 11th US Circuit Court of Appeals swatted back a Trump appeal in another lawsuit related to his loss in Georgia. The panel declared it lacked jurisdiction to hear a state grievance that was moot anyway.

“This appeal turns on one of the most fundamental principles of the federal courts: our limited jurisdiction. Federal courts are not constituted as free-wheeling enforcers of the Constitution and laws,” Judge William Pryor wrote for the three-judge US panel, adding, “when someone sues in federal court, he bears the burden of proving that his suit falls within our jurisdiction …. (Lin Wood) failed to satisfy this burden.”

Even if the dispute fell within their federal realm, Pryor added, “Because Georgia has already certified its results, Wood’s requests to delay certification and commence a new recount are moot.” Pryor, as well as Judge Barbara Lagoa, also on the 11th Circuit panel, had been touted by Trump in the past as possible Supreme Court candidates.

Supreme Court defies Trump’s expectations

Trump has suggested he might prevail if an election dispute were resolved by the US Supreme Court.

In September, he urged quick action on his new nominee — Amy Coney Barrett — so the justices could not deadlock 4-4. The Republican-controlled Senate swiftly approved Barrett, over protests from Senate Democrats, to succeed the late Justice Ruth Bader Ginsburg.
Trump appeals to legislatures and Supreme Court in attempt to overturn the election he lost
On Tuesday, before the ruling, Trump again insisted wrongly that he had won the election and referred to a possible role for the Supreme Court in his effort to reverse the outcome that favored Biden: “Let’s see whether or not somebody has the courage, whether it’s legislators or legislatures or a justice of the Supreme Court or a number of justices of the Supreme Court,” Trump said.

Until Tuesday’s action in a Pennsylvania case brought by US Rep. Mike Kelly and other Republicans, Barrett had not voted in an election dispute.

The Kelly appeal sought to invalidate absentee votes cast under procedures set by a 2019 state law. The Pennsylvania Supreme Court dismissed the lawsuit. Judges said the complaint against the year-old law had been filed too late.

In urging the high court justices to let that Pennsylvania decision stand, Pennsylvania officials said GOP challengers were asking “this Court to undertake one of the most dramatic, disruptive invocations of judicial power in the history of the Republic. … The loss of public trust in our constitutional order resulting from the exercise of this kind of judicial power would be incalculable.”

The justices said nothing as they dismissed the case, and their individual votes were not disclosed. Sometimes in such orders justices dissent without making their views public, so it is difficult to know at this point whether Barrett or any other justice did not join the majority.

The high court had ensured that all filings in the Kelly case were in by Tuesday, the “safe harbor” deadline. Federal law sets other deadlines leading up to Congress’ final count on January 6, including next Monday, December 14, when state electors will convene. But results certified by Tuesday’s “safe harbor” are protected from challenge.

Before the November 3 election, a Supreme Court majority had intervened in some state ballot disputes.

On October 26, the night Barrett was confirmed, an eight-justice court issued an opinion that limited the counting of mail-in ballots in Wisconsin. Justice Brett Kavanaugh, Trump’s 2018 appointee, signaled at the time an openness to some Trump campaign arguments.

By a 5-3 vote, the conservative high court majority spurned arguments from the Democratic National Committee to allow an extension for counting Wisconsin absentee ballots beyond Election Day, as a lower US court judge had decreed. Chief Justice John Roberts wrote that the US district judge had wrongly intruded in a state legislative matter.
Kavanaugh wrote a concurring opinion that drew particular attention for citing part of the 2000 Bush v. Gore case regarding federal court scrutiny of state election decisions and for referring to the “chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of the election.”

Justice Elena Kagan, dissenting, criticized the notion that legitimately cast ballots would “flip” the results. She said, “(T)here are no results to ‘flip’ until all valid votes are counted. And nothing could be more ‘suspicious’ or ‘improper’ than refusing to tally votes once the clock strikes 12 on election night. To suggest otherwise, especially in these fractious time, is to disserve the electoral process.”


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