Is PolitiFact entering a golden age of Joe Biden rubberstamp fact checks?
Consider this Jan 8, 2021 item from PolitiFact with bylines for Amy Sherman and Miriam Valverde:
PolitiFact cited an expert who counted 63 cases that were dismissed either on the merits or for other reasons such as lack of standing. That's an okay thing for fact checkers to do:
Marc Elias, a lawyer who has filed and defended cases on behalf of Democrats, keeps a tally on the outcome of the election cases.
"It is 63 losses by Trump and his allies," Elias told PolitiFact the morning of Jan. 8. "We treat each case separately — so if there is a federal case and a state case, we treat them as two cases. We only ever count a case one time — so if there is an appeal or remand, we do not treat that as a separate loss."
But PolitiFact ended up having a hard time distinguishing between lack of merit and lack of standing. Instead of distinguishing between the two, PolitiFact appeared to assume that a case dismissed for lack of standing also lacked merit. This type of wording was typical of the fact check:
More than 60 lawsuits brought by Trump and his allies failed because they were unable to prove their allegations. Some lawsuits were dismissed due to errors in the filings and other procedural issues.
A proper fact check of Biden's claim would look specifically at the cases dismissed on the merits, putting a number on it and then looking at whether that number exceeded 60.
That never happens in PolitiFact's fact check. Instead, PolitiFact tells us that more than 60 cases were dismissed for a variety of reasons. And then concludes on that basis that Biden was correct. The "True" rating is supposed to mean that there's no missing context.
But PolitiFact itself omits critical context. The law distinguishes between the reasoning judges use to determine lack merit and the reasoning used to determine lack of standing. When a judge rules the plaintiff lacks standing to sue, the court need not examine the merits of the case.
Glenn G. Lammi sketched the essence of the doctrine for Forbes:
A plaintiff’s lack of standing to sue is about as close to a silver-bullet defense as civil-litigation defendants have at their disposal in federal court. The doctrine is based in Article III of the U.S. Constitution, which limits federal courts to hearing only "cases and controversies." The doctrine puts the onus on a plaintiff to prove, among other factors, that she suffered an actual harm, and if she can't, the court has no jurisdiction over the case.
And when a court has no jurisdiction over a case, it need not consider the case on its merits (Wikipedia):
In the United States, the current doctrine is that a person cannot bring a suit challenging the constitutionality of a law unless they can demonstrate that they are or will "imminently" be harmed by the law. Otherwise, the court will rule that the plaintiff "lacks standing" to bring the suit, and will dismiss the case without considering the merits of the claim of unconstitutionality.
It follows that a suit dismissed for lack of standing was not dismissed as meritless, for the court had no need to decide the case on the merits.
Without counting the number of cases dismissed for reasons other than lack of merit, a fact check cannot make a determination that more than 60 cases were dismissed as meritless. Yet PolitiFact's so-called fact check does just that.
PolitiFact used 63 as the total number of relevant cases. Based on that number, if just three cases were dismissed for reasons other than merit, then Biden's claim is false. But PolitiFact decided not to put that kind of effort into its fact check.
As happens so often, PolitiFact was only willing to put enough effort into its fact check of a Democrat to find the claim true. In this case, PolitiFact appeared to assume that any dismissal indicated lack of merit.
In other words, it was another PolitiFact rubberstamp.