A conservative federal judge, a lifelong Republican, gets to decide on the Trump campaign’s effort to throw out all the votes in Pennsylvania, a state critical to Joe Biden’s election.
If you are Republican, you might hope that the judge will help his party’s candidate. But you might be surprised to learn that the president who appointed him was Democrat Barack Obama.
If you are a Democrat, you might be outraged that Obama’s Republican judge was confirmed while his Supreme Court nominee, a Democrat, was blocked by the GOP Senate.
If you prefer the rule of law over the law of the political jungle, here’s a good judge on a bad case.
Facing the COVID-19 crisis, many states allowed for a major increase in mailed-in ballots. Reluctant to visit polling places, voters gained lower risk access by the expanded use of absentee voting. In some states, mailed-in ballots exceeded in-person voting.
Trump claimed that mail ballots invite vote tampering and fictitious voters. The opportunities for cheating were so obvious to him that no evidence was needed.
He also charged that vote counters themselves cheated and election officials of both parties favored Biden. He cast himself as the victim of a national conspiracy. Enough votes should be thrown out to make him the election winner.
As in any human activity, some cheating must exist in the conduct of elections. Historically, it has never affected more than a few ballots, not enough to change the result. Every case must be spotted almost immediately with hard supporting evidence.
Trump’s advocates acted like his political toadies, not trained legal experts. Despite making big promises, Rudy Giuliani ranted about conspiracy theories but offered no evidence.
After making baseless charges, they dropped their fraud claims and admitted that both parties had been treated the same. They still insisted the election should be overturned.
The Pennsylvania case boiled down to two voters whose ballots were rejected, because they ignored voting rules. If successful, they wanted the election nullified, leaving Pennsylvania with no electoral votes. The judge rejected the demand that an election could be erased, because of a complaint by two voters.
While the focus has been on his futile attempt to retain office after having lost an election, Trump may be laying the foundation for his political future. His fundraising has surely been designed to help his financial future. Trump’s plan could be that claiming an unjust defeat now helps him build and retain a disgruntled political base for 2024.
Just as he dismissed the Obama presidency, Trump may use his fraud claims as the basis for trying to undermine Biden. He could lead a potentially large, dissident minority that seeks Biden’s failure. Not only would that strategy aid his next campaign, but it could weaken Biden’s moves to undo his policies.
There has been furious talk about the damage caused by Trump’s efforts to claim victory and block the transition. Some of that talk may be written off to politics. But the assertion that Trump threatens democracy is real. The American system of government begins with votes by “We, the People.” Everything else is built on that foundation. If basic decisions, like who should hold public office, are made by anybody other than the people, that’s not democracy. For a quarter century, partisanship has increased. In particular, Trump and his supporters believe that more than merely disagreeing with the Democrats, they face an opposing party threatening their freedom. If so, any action to block its access to power is acceptable.
In the extreme, this amounts to saying that to save America, you may have to throttle democracy.
That approach can be seen in Trump’s way of governing. His executive orders amount to authoritarian rule, not decision-making by the people’s elected representatives.
This aggressive form of government operates because congressional Republicans fear running afoul of the millions of people who support Trump. They remain quiet, refrain from showing leadership, and allow him wide discretion.
Republican senators say Trump has the right to go to court if he believes the elections were not fair. He relied on their forbearance. But, without evidence, going to court is not a right. If merely asserting a right would assure courtroom success, judges would be kings.
But many judges take their independence seriously, as did Judge Matthew Brann in Pennsylvania. The Constitution held firm at the federal court in Williamsport, Pennsylvania.
“This Court has been presented with strained legal arguments,” Brann wrote, “… unsupported by evidence. In the United States of America, this cannot justify the disenfranchisement of a single voter, let alone all the voters of its sixth most populated state.”
In short, you can’t have America without democracy, and democracy means voters – all of them.
Gordon L. Weil formerly wrote for the Washington Post and other newspapers, served on the U.S. Senate and EU staffs, headed Maine state agencies and was a Harpswell selectman.
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