It ain’t over til it’s over

Yesterday, in a post called “It’s Over,” I noted that Jill Stein and her friends have withdrawn their state court suit which sought a recount of the Pennsylvania presidential vote. But Team Stein hasn’t quit, after all. Instead, it has resorted to federal court.

Team Stein’s lawyer explained:

Over the past several days, it has become clear that the barriers to verifying the vote in Pennsylvania are so pervasive and that the state court system is so ill-equipped to address this problem that we must seek federal court intervention.

Stein says she’s going to “escalate” her attack on the Pennsylvania result via a “constitutional” argument.

What is the constitutional argument? Apparently, it’s an attack on the requirement that Stein and company post a bond of $1 million as a condition of its legal action seeking a recount.

At the risk of underestimating the potential benefits of forum-shopping, I think Team Stein is unlikely to get far in federal court. Yes, the bond requirement impedes the recount she seeks. But remember, there’s an automatic recount if the margin of victory is half of one percentage point or less.

A recount when the margin exceeds that level is presumed to be not worth the cost and administrative effort. Thus, it seems reasonable to require the posting of a bond in an action to force the recount. (This may be particularly true where the candidate seeking the recount finished fourth with only a tiny share of the vote). Moreover, in assessing the reasonableness of the bond requirement, one would expect a federal court to give considerable deference to the state.

That, at least, is my quick take.

Technically, though, “it ain’t over.” When it is, I’ll repost the video of Roy Orbison and of the final moments of England 4, West Germany 2.


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