Wednesday, November 18, 2020

"Let Us Now Praise Famous Men"

Bart Gellman's Atlantic article speculating on how Trump could “steal” the election should become a lesson in journalistic responsibility. By which I mean irresponsibility.

The internet is rife with sources of baseless and ignorant speculation (Mark Joseph Stern at Slate has made a career of it). Most of this speculation involves the absolute horror that the future must be when whatever new terror imagined comes to pass, and the writer alone is escaped alive from that future to warn us. Or when the vision out of Spiritus Mundi slouches toward Bethlehem to be born. It’s always the worst possible future, coming with the inevitability of sunrise, despite its absolute improbability. Indeed, the more improbable it is, the more it must happen, because like any conspiracy theory, the only proof of it is the rejection of it. The more it is rejected, the more it must be true. Publications like The Atlantic shouldn’t join into such conspiracy mongering, but Gellman’s article put them in the middle of the constitutional conflagration we are witnessing.

The idea that local or state election boards could somehow override 2020 results has been a concern since before the Nov. 3 election, with experts warning that Trump’s repeated efforts to undermine confidence in the results was part of a long-game ploy to create enough doubt in the minds of voters that GOP electors would have room to refuse certifications—a thesis spelled out in journalist Bart Gellman’s piece in The Atlantic, published online in October, titled “How Trump Could Attempt a Coup.”

What transpired in Michigan on Tuesday—though ultimately unsuccessful—is nearly exactly the kind of effort that Gellman and others had warned about.

It's the "ultimately unsuccessful" part that's the key phrase there.  Trump has now lost 25 suits, winning only a victory in one, which can't possibly overturn the vote count in Philadelphia, or affect the outcome of the vote there at all.  The problem here is Trump and Giuliani are following Gellman's "playbook," the one he speculated could happen and thereby made happen.  And it's a losing argument because Gellman's analysis (and the "legal experts" he spoke to) were not only wrong, but completely wrong.

And yet here we are.

Now, is Giuliani grifting Trump, trying to earn his reported demand of $20,000 a day?  It's hard not to think so after his performance in court yesterday:
That hearing went so well the judge cancelled the evidentiary hearing he's scheduled for today; meaning he saw no purpose in it, since Giuliani clearly had no evidence to bring before the court. How bad was he, by the way? Ben Matlock could have done better. Hell, Bozo the Clown could have done better. The Trumpistas may have loved it; but none of them sit on the federal bench; at least not for this case. and yet this is plainly happening because Burt Gellman took a chowderhead idea to some lawyers who should have known better (and probably didn't know Constitutional or electoral law all that well) and got scare quotes and idiotic ideas unworthy of a Twitter thread which he then sold to The Atlantic.

And here we are.

There is a scheme in this, and it still rests on Bush v. Gore. Whether or not Rudy understands what a thin reed that is, is now irrelevant. The space between Giuliani and Trump on legal reasoning and understanding is not wide enough to slip a piece of paper into. Yeah, that only works when all other avenues have been exhausted. At best, they have a chance with the Pennsyvlania suit that state's Supreme Court just rejected unanimously. No, I know the vote was not unanimous; but the two dissenting votes thought the case was moot, not meritorious. It's a dead fish. Will the Supremes take it up before December 8 and rule on it, in keeping with the deadline of Bush v. Gore? And do what? Invalidate 6.8 million votes for the sake of two people? (No, I know it's not the same case as before the Federal District Court, but it might as well be.) Even Alito and Thomas won't do that, and even if they wanted to (and I believe they do, especially after Alito's public temper tantrum about being labeled a bigot because he dissented in Obergefell; boo fuckin' hoo, Mr. Justice. Is Trump's childish behavior contagious? Or are you just modeling it?), they'd never get Kavanaugh and Gorsuch to go along (ACB is a blank slate at this point).

How does Giuliani's fantasy strategy work?  Bush v. Gore got to the Supremes on direct appeal from the Florida Supreme Court.  Trump could do the same in PA, though, as I say, without the impact even if he won.  The 24 other cases?  Some of them have been abandoned; have to restart quickly in order to get those on track to the highest court.  Others were dismissed.  The only recourse in those cases is to request a new trial (standard appellate practice), get that motion denied, then file an appeal in the appropriate Circuit court.  Then get a hearing there, an opinion, a mortion for rehearing denied, and then appeal for writ of certiorari to the Supremes.  As of the day I write, they have 20 days left.  Better get crackin'.

Could the Supremes take a case and rule in 20 days?  Yes, it's possible.  They could reach down and take up a case.  They have one case pending (I don't know the status) from PA.  They don't seem anxious to rule out of regular order (no emergency, IOW).  Even the case heard yesterday won't be finalized unless the court dismisses, and that may not happen before Thanksgiving.  Even if it does, that leaves only two weeks to get the case before an appellate court, get a decision, get a motion for rehearing there denied, and then file for certiorari.

These clowns?  As Wallace Shawn said:  "Inconceivable!"  But in this case, I do know what the word means.  Too bad Burt Gellman didn't.

One other point:  even if Giuliani can get any of the dismissed cases before the Supreme Court, all he can hope for is a remand directing the court to take evidence (dismissal is always on the basis whatever evidence alleged is insufficient for the complaint).  The most recent case is an example:  the court has cancelled an evidentiary hearing.  The appeal would only be for the trial court to actually hear evidence; no final ruling reversing on appeal would be possible without evidence taken in the trial court.  So the best Giuliani can do is get a remand, and by the time he does that the deadline has come, the clock has tolled, and this Masque of the Red Death has claimed his prince.  Even if the Supremes overruled the PA Supreme Court, all it would affect is the handful of votes in contention.  They won't undo all the ballots cast in PA (imagine the electoral chaos of such a ruling.  Toss out all the ballots, or just all the Presidential election ballots?  How do they cut that baby?  And even if they do, the electoral college count is diminished commensurately, as I've noted before.
It's the "appointed electors" that count, not the possible number of electors.
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