‘Outrageous’ Disenfranchisement

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The New York Sun

The best thing that could happen in respect of the contretemps over whether the Russians hacked the American election would be for the Central Intelligence Agency to be haled into the courtroom of Paul Diamond, United States District Judge. He is the sage who sits at Eastern Pennsylvania and just denied the petition of Jill Stein of the Green Party that he order a recount of Pennsylvania’s presidential vote. What a glorious lesson His Honor has delivered in American civics.

The judge lists six reasons that he is required by law to deny Dr. Stein’s request that the court order a recount. His opinion starts with the word “unsuccessful,” as in “unsuccessful Green Party Candidate Jill Stein.” The judge notes that Dr. Stein won but eight tenths of one percent of the millions of votes cast at Pennsylvania. Even she doesn’t deign to allege that a recount might change the results and offers “no credible evidence” that a hack occurred. Then he goes into the question of standing.

This relates to the most basic limitation on the power of the courts — that they may only deal with actual cases and controversies. So, Judge Diamond explained, “a plaintiff must show (1) that it has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.”

By that standard Dr. Stein’s claim looks downright contemptuous, enough so to make one wonder why Judge Diamond didn’t just clap the distraught doctor into irons until the Electoral College finished meeting. In any event, it turns out, Dr. Stein also faced the problem of jurisdiction. She asked the United States to get involved when the matter was before the state courts. Judge Diamond, in a devastating review of the precedents, made short work of that sneakiness.

Which brought him to the question of delay. It turns out that Dr. Stein lollygagged for something like 20 days after the election before filing suit in the state courts and another week or so before filing in federal court. The delay precipitated, in the words of one judge, a “judicial fire drill,” and, in Judge Diamond’s words, a “mad scramble.” The point is that the delay made it impossible to complete a recount by tomorrow’s deadline.

That raised the danger, Judge Diamond warned, that “all of Pennsylvania’s six million voters could be disenfranchised.” He suggested that such an outcome would be “inexcusable.” The upshot is that granting Dr. Stein her “later than last minute request” could “well ensure that no Pennsylvania vote counts.” The judge characterized such a result as “outrageous and completely unnecessary” in a case where “suspicion of a ‘hacked’ Pennsylvania election borders on the irrational.”

Now that’s United States district judging at its best. It’s enough to hope that Judge Diamond finds himself on President-elect Trump’s list for the Supreme Court. All the more so since President George W. Bush tried to elevate him to ride the Third United States Circuit (where Mr. Trump’s sister is a rider) only to have the Democrats use against him the same “Thurmond rule” (related to election-year confirmation) that the GOP is using against The Honorable Merrick Garland.

It’s hard, in any event, to imagine the business about President Putin’s camarilla trying to interfere with the 2016 presidential election prospering in Judge Diamond’s courtroom. All sorts of foreign potentates, after all, were trying, albeit openly, to foil the rise of Mr. Trump (even Francois Hollande and Prime Minister Cameron) and no one complained. No one has yet shown that any of them had an actual effect. So where’s the evidence of the Russians? Let the CIA Democrats bring it to Judge Diamond, we say, if they dare.


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