2020 Election Commentary

[Mistwell]

This is the written opinion of the judge for the US District Court in Pennsylvania.

He's conservative, and republican. He's a prominent member of the Federalist society. He was a Republican Party official in Pennsylvania for many years. He is an active National Rifle Association member.  He was appointed on the recommendation of Republican Senator Pat Toomey.

He ruled against Trump in Pennsylvania. The opinion is worth reading. It expresses, in some ways, why I am so frustrated with some folks on this forum in this thread.

[HappyDaze]

This is the written opinion of the judge for the US District Court in Pennsylvania.

He's conservative, and republican. He's a prominent member of the Federalist society. He was a Republican Party official in Pennsylvania for many years. He is an active National Rifle Association member.  He was appointed on the recommendation of Republican Senator Pat Toomey.

He ruled against Trump in Pennsylvania. The opinion is worth reading. It expresses, in some ways, why I am so frustrated with some folks on this forum in this thread.

Remember, according the right-wing(?) extremists that REEEE! around these parts, being conservative, Republican, or any of that means nothing the moment they take a stand against the extremists' nonsense. At that moment, they are SJWs to these morons.

[TrekkieKT]

This is the written opinion of the judge for the US District Court in Pennsylvania.

He's conservative, and republican. He's a prominent member of the Federalist society. He was a Republican Party official in Pennsylvania for many years. He is an active National Rifle Association member.  He was appointed on the recommendation of Republican Senator Pat Toomey.

He ruled against Trump in Pennsylvania. The opinion is worth reading. It expresses, in some ways, why I am so frustrated with some folks on this forum in this thread.

Thank you for the link.
It was...enlightening.

In summary:
The plantiff voter's votes were not counted because there were defects on their mail in ballots and their counties chose NOT to follow the suggestion of the Secretary of State to allow voters to "cure" (cast provisional ballots in place of their mail-in) their ballots.

Their complaint failed because:

• They didn't sue the the counties they lived in, they sued other counties that DID allow curing of votes and;
• Their requested remedy wasn't to have their votes counted, it was to NOT have everyone else in Pennsylvania's vote counted, a remedy the judge thought didn't remedy their injury but simply injured others.

In terms of the Trump Campaign: they don't have standing: they represent his desire to be re-elected. Him NOT being re-elected by the voters of Pennsylvania isn't an injury, it's the result of a political process and hence they have no standing.

Beyond that, he also addresses equal protection argument and the remedy requested.

The standard for an equal protection claim on the right to vote is that the "imposed burden" must be outweighed by the state's reason for applying the burden.
The Secretary of State DIDN'T apply a burden.
He gave counties the option to cure ballots.
Those that chose to cure votes where arguably removing a burden to voting.

He also found that their requested remedy would simply be injuring others (removing their right to vote), not remedying their injury (their votes not being counted).
The minimum remedy to fix their injury but not injure other would be to allow their votes to be cured and counted.

If the Voters had sued their counties to allow them to cure their votes under an Equal protection argument, they might have had a better chance of success.

Peace, Love and Bilbies.
TrekkieKT

[Mistwell]

Thank you for summarizing it TrekkieKT.

[Pat]

In terms of the Trump Campaign: they don't have standing: they represent his desire to be re-elected. Him NOT being re-elected by the voters of Pennsylvania isn't an injury, it's the result of a political process and hence they have no standing.

Doesn't that contradict Bush v. Gore? More generally, denying the right to seek a remedy in the courts when there's unequal treatment, fraud, or whatever in an election sounds horrific because it would greenlight all kinds of abuses. I see it as equivalent to the exclusion rule. It isn't fair to the victims when you throw out evidence because the cops didn't follow the rules, but if you don't have the rule, then it encourages cops to cheat, which not only throws a spanner in the works of the justice process, but it causes people to lose faith in the system itself. It's a necessary remedy.

[trekkiebob]

In terms of the Trump Campaign: they don't have standing: they represent his desire to be re-elected. Him NOT being re-elected by the voters of Pennsylvania isn't an injury, it's the result of a political process and hence they have no standing.

Doesn't that contradict Bush v. Gore? More generally, denying the right to seek a remedy in the courts when there's unequal treatment, fraud, or whatever in an election sounds horrific because it would greenlight all kinds of abuses. I see it as equivalent to the exclusion rule. It isn't fair to the victims when you throw out evidence because the cops didn't follow the rules, but if you don't have the rule, then it encourages cops to cheat, which not only throws a spanner in the works of the justice process, but it causes people to lose faith in the system itself. It's a necessary remedy.

It's more that the remedy they asked for was out of proportion to their injury.
Getting their vote counted heals their injury.
Denying others (every voter who voted in PA) their vote doesn't remedy their injury, it just leaves everyone else fucked over.

I'll read more deeply around why the judge distinguished this case from Bush abs. Gore

[Pat]

It's more that the remedy they asked for was out of proportion to their injury.
Getting their vote counted heals their injury.
Denying others (every voter who voted in PA) their vote doesn't remedy their injury, it just leaves everyone else fucked over.

Treating it like a personal injury is the problem, because that's not the heart of the issue. Fundamentally, it's about the integrity of the process. Which is why I likened it to the exclusion principle, which exists not to be fair to one of the parties, but to get rid of a malign incentive that corrupts the system.

[TrekkieKT]

Doesn't that contradict Bush v. Gore? More generally, denying the right to seek a remedy in the courts when there's unequal treatment, fraud, or whatever in an election sounds horrific because it would greenlight all kinds of abuses. I see it as equivalent to the exclusion rule. It isn't fair to the victims when you throw out evidence because the cops didn't follow the rules, but if you don't have the rule, then it encourages cops to cheat, which not only throws a spanner in the works of the justice process, but it causes people to lose faith in the system itself. It's a necessary remedy.

Okay, in summary:
The Trump campaign DIDN'T clearly state WHY they have standing to sue, they sort of, kind of, implied it by reference to other cases: associational standing and competitive standing.

Competitive standing they apparently totally fucked up: it apparently only applies when a ballot contains in-eligible candidates (due to issues with lodging paperwork on time, citizenship etc).
No one's claiming the Joe Biden wasn't a legal\eligible candidate for President of the United States of America in PA and the judge declined to expand the context that this standing can be claimed in.

Associational standing allows an organization to intervene in a lawsuit if it meets the requirements that:

• it's members have standing to sue and;
• the interests it seeks to protect are germane to the organization's purpose and;
• neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.

The Trump Campaign fails on point 1 the members (the voters), are suing the wrong bodies for the wrong remedy and hence have no standing.

It also, more dramatically, fails on point 2.

A previous case found that the Trump campaign "represents only Donald J. Trump and his 'electoral and political goals' of reelection."
The interest of the members that it is trying to sue to protect (to have their vote counted via an Equal protection argument) is distinct from the organization's goal (of electing Donald J Trump), even if the voters would have voted for Donald Trump.

As the judge summarizes "To be clear, this Court is not holding that a political campaign can never establish standing to challenge the outcome of an election; rather, it merely finds that in this case, the Trump Campaign has not pled a cognizable theory."

To be clear, I'm not a lawyer but the judge has made an extraordinary effort to make his reasons and reasoning clear and to the point.

Peace, Love and Numbats.

[TrekkieKT]

It's more that the remedy they asked for was out of proportion to their injury.
Getting their vote counted heals their injury.
Denying others (every voter who voted in PA) their vote doesn't remedy their injury, it just leaves everyone else fucked over.

Treating it like a personal injury is the problem, because that's not the heart of the issue. Fundamentally, it's about the integrity of the process. Which is why I likened it to the exclusion principle, which exists not to be fair to one of the parties, but to get rid of a malign incentive that corrupts the system.

To make sure I'm discussing this in the right context, my understanding of the exclusion principle is that if the police gather evidence illegally, that that evidence cannot to be used against a defendant in a court of law e.g. if the police search my house without a search warrant, immediate probable cause or my permission, they can't use the bloody knife and clothes in a black plastic garbage bag under my bed as evidence that I murdered the nice old lady down the street (actual case from the 90s, I forget the exact details).

In a case where it comes in, the exclusion principle still acts to protect and provide remedy to an individual person injured by another person/organization's actions:
the police\law enforcement (the organization causing an injury) that violated the suspect's right (the injury) are prevented from using the evidence so acquired in the court case against the suspect (the remedy).

In this case, some counties allowed vote curing while others didn't.
Even if the judge had found that this represented unequal protection under the law (he didn't) and had established a principle that either all counties have to cure votes or none do, what's the remedy to provide protection for this case after the fact?

It's not clear exactly what proportion of votes were cured. 0.1%? 1%? 10%?
Even if you know that number, how do you decide which votes to exclude?
After the fact, there's no way to like an individual ballot to a 'cured' voter due to it being a secret ballot.

Let's assume that 10% of votes were cured and they were all mail-in.

Hence, do you exclude 10% of the total mail-in votes from the total?
Exclude 10% proportionally of the mail in votes received for each candidate.
Then you're injuring 250,000 random voters who might or might not have had their votes cured.

Do you exclude all mail-in votes completely?
Then you're injuring even more people who voted legally.

Declare the election completely void?
Then you've just disenfranchised everyone in PA.
FYI this is what the Trump suit was asking for.

And that's fucking insane in my honest opinion.

Peace, love and wombats

*Edit - the reporting I've seen suggests that there were less than 10,000 ballots invalid mail-in ballots state wide that weren't cured.
That's less than the margin of victory for Biden (c. 80,000 votes).

[Pat]

To make sure I'm discussing this in the right context, my understanding of the exclusion principle is that if the police gather evidence illegally, that that evidence cannot to be used against a defendant in a court of law e.g. if the police search my house without a search warrant, immediate probable cause or my permission, they can't use the bloody knife and clothes in a black plastic garbage bag under my bed as evidence that I murdered the nice old lady down the street (actual case from the 90s, I forget the exact details).

I find your discussions interesting, but while I did reference a case and a legal principle, I'm not really coming at this from a legal standpoint, nor am I particularly concerned with the merits of this specific case. Rather, I'm coming at it from a systemic standpoint. If we want to discourage voting fraud, or inequitable treatment, or regulatory overreach, or any of the other situations that have come up since the start of November, then we need something like the exclusionary rule for elections.

The exclusionary rule is fundamentally a ward against systemic corruption. Yes, if cop acts illegally or inappropriately when collecting evidence, and therefore violates the rights of the suspects, there has always been the threat of legal consequences. But, because of their insider role, the incestuous nature of the system and the various special protections that have been put in place, it's rare that anyone is punished. And even when it does happen, it's usually a slap on the wrist, instead of real consequences like prison, losing a job, or severe fines. And even if charges are filed, the standards for conviction in a criminal case are high, which makes success unlikely. Not to mention, criminal, civil, or even regulatory penalties take a while to work through the system, meaning even if there is eventually some semblance of justice, it will be greatly delayed. This creates a very weak incentive for proper behavior, and very little recourse for the victims. It's much better to preemptively discourage such behavior, in the first place.

The reason the exclusionary rule works is because it does not go after the person who might have violated the rules. Nobody's civil rights need need to be protected, no lengthy process is required, and it doesn't require such a high bar for proof. But it provides a strong incentive to follow the rules, because it strips away the reward for cheating. If the evidence was collected inappropriately, it's thrown away. It also encourages professionalism like strong evidence handling rules and clear chains of custody. And from a practical standpoint, there is strong and clear evidence that the exclusion principle works to reduce the frequency of things like planting evidence.

The same principle should apply to fraud, irregularities, impropriety, or other forms of negligence or malfeasance in elections. Going after the perpetrators is hard, which makes it a very weak disincentive. So the only solution is to invalidate suspect ballots. That does mean legitimate votes will be thrown away, but it's necessary to ensure a system that discourages the kind of behavior that's been widely reported in this election.

Disenfranchising voters through no fault of their own should enrage the public, and that rage itself will serve as a powerful check on corruption. But we need to very clear who is at fault. If votes are thrown out, we need to stop blaming the judges or the plaintiffs. They're doing their jobs to help ensure we have fair elections. No, we need to shift the blame to the election officials who engaged in impropriety, or who were insufficiently professional and thus created the perception of impropriety. It's their fault, if votes are thrown out. If Wayne County fucks up, and none of their votes are counted, that creates a powerful incentive for the public to throw the dirtbags out and clean house, so it doesn't happen in the next election.

We need to start throwing away votes. It's the only way to ensure the system is fair.

[trekkiebob]

That's an interesting position.
One I absolutely, fundamentally disagree with.
But one I can understand.

Using the exclusionary principle as an example it has numerous caveats and carve outs.

Let's suppose that we apply the rule that election issues (fraud, human error etc) means that a county's or a state's votes are thrown out.

Is an accusation enough or does there need to be a judicial finding? Even the exclusionary rule needs more than just an accusation here.

Is there a matter of scale or is it an absolute: any issues, all votes get thrown out?

If it's the later, I know people both left and right who absolutely would concoct a scheme that's almost impossible to detect, wait till after the election is held and then walk into their local police station and loudly confess to completely invalidate the local city, council or state vote.

The fundamental reason that the exclusionary principle works to discourage systemic issues is that it gets applied on a case by case basis and if a department systematically violates it, they achieve nothing.

Lastly, the real reason that your idea strikes as, frankly, horrible, is that you're applying collective punishment for what are individual crimes and/or mistakes.

American justice is built, in theory at least, on a basis of individual responsibility and punishment or restitution.

I can think of nothing that would erode societal stability in all areas of the USA quicker than allowing a small number of people by either malice, incompetence or pure human error, to remove the ability of honestly, legally cast votes from Americans of all political stripes to influence their future.

[EOTB]

Man, those churches and synagogues should have conceded after the lower level courts ruled against them in very unambiguous language on the covid issue. 

[trekkiebob]

Man, those churches and synagogues should have conceded after the lower level courts ruled against them in very unambiguous language on the covid issue.

There argument that the New York City restrictions were unconstitutional has more basis in American jurisprudence than the case I was discussing above.

Again I'm not a lawyer and that's just my opinion.

[Pat]

Is an accusation enough or does there need to be a judicial finding? Even the exclusionary rule needs more than just an accusation here.

Of course there needs to be judicial finding. That's a bizarre question. A truly bizarre question. Nothing I can think of happens solely on the basis of an accusation. That you're even asking the question suggests you're missing the point, entirely.

Is there a matter of scale or is it an absolute: any issues, all votes get thrown out?

If it's the later, I know people both left and right who absolutely would concoct a scheme that's almost impossible to detect, wait till after the election is held and then walk into their local police station and loudly confess to completely invalidate the local city, council or state vote.

The fundamental reason that the exclusionary principle works to discourage systemic issues is that it gets applied on a case by case basis and if a department systematically violates it, they achieve nothing.

Lastly, the real reason that your idea strikes as, frankly, horrible, is that you're applying collective punishment for what are individual crimes and/or mistakes.

American justice is built, in theory at least, on a basis of individual responsibility and punishment or restitution.

I can think of nothing that would erode societal stability in all areas of the USA quicker than allowing a small number of people by either malice, incompetence or pure human error, to remove the ability of honestly, legally cast votes from Americans of all political stripes to influence their future.

On the matter of scale, that's another bizarre question. There is always going to some degree of judgment involved, and they'd have to set standards. The best solutions will have to be worked out, I'm not familiar enough with the relevant standards to concretely spell out what they should do.

The rest of your post seems to be assuming that imposing standards is an invitation for fraud, and that people are incapable of coming up with reasonable precautions against exploiting the standards. Except it's the opposite that's true: When you don't have standards, and let everyone get away with everything, that's when fraud becomes rampant. Cf. Medicare. The argument that we should just ignore all the problems is, frankly, monstrous, because that means the situation will never get better.

[EOTB]

Man, those churches and synagogues should have conceded after the lower level courts ruled against them in very unambiguous language on the covid issue.

There argument that the New York City restrictions were unconstitutional has more basis in American jurisprudence than the case I was discussing above.

Again I'm not a lawyer and that's just my opinion.

The Roe V Wade people should have conceded after the lower level courts ruled against them in very unambiguous language on the abortion issue over and over

The people desiring flag burning as protected speech should have conceded after the lower level courts ruled against them in very unambiguous language on the flag burning issue over and over

The people desiring prayer out of schools should have conceded  after the lower level courts ruled against them in very unambiguous language on the prayer issue over and over