Trump Campaign Files Lawsuit on Pennsylvania Election Result. Does It Have a Case?

T he Trump campaign has filed a lengthy complaint in federal court, challenging Pennsylvania’s administration of the 2020 presidential election as a violation of the Constitution’s Equal Protection Clause. This is the theory under which, 20 years ago, the Supreme Court invalidated Florida’s presidential election vote-counting procedures in Bush v. Gore.

The main target of the suit is the 682,479 mail-in and absentee ballots submitted from the Democratic strongholds of Philadelphia and Allegheny Counties (the latter includes Pittsburgh). According to current reported returns, presumptive President-elect Biden defeated President Trump in the Commonwealth of Pennsylvania by about 46,000 votes.

The 86-page complaint was filed Monday in the United States District Court for the Middle District of Pennsylvania, which is headquartered in Scranton and has divisions in Harrisburg, Williamsport, and Wilkes-Barre. Though the Middle District encompasses parts of the state that are more Trump-friendly than the Eastern and Western Districts (located in Philadelphia and Pittsburgh, respectively), that does not necessarily mean the court will be accommodating. The case has been assigned to District judge Matthew Brann, who was appointed by President Obama in 2012, though he spent years as a Republican Party official while practicing law in the Commonwealth and was a member of the Federalist Society.

The complaint alleges that state election officials and courts established, de facto, “an illegal two-tiered voting system.” In part, this is because of differences in treatment for in-person and mail-in voting. Naturally, those methods cannot be treated exactly same way because they are different in kind. Nevertheless, the complaint stresses that certain differences in treatment are not only arbitrary but counterintuitive because they vitiated precautions necessary to shore up the integrity of mail-in voting, which is the less-secure voting method.

The complaint alleges that in-person voters (a) were subjected to rigorous signature-matching, (b) voted in a polling place monitored pursuant to statute by poll observers from both parties, and (c) had “their votes counted in a transparent and verifiable open and observed manner.” By contrast, the Trump campaign asserts that Secretary of State Kathy Boockvar, a Democrat, “affirmatively excised nearly every element of transparency and verifiability” for the nearly 2.65 million mail-in votes.

The complaint maintains that Secretary Boockvar refused to require adequate verification of voter identities (including undermining signature matching). She also permitted the counting of ballots received up to three days after the election even if they lacked evidence showing they had been submitted by or before Election Day (consistent with a state supreme court ruling, though inconsistent with state statutory law). In conjunction with other election officials, Boockvar is also said to have authorized the review and counting of ballots “largely in secret with no monitoring.”

The complaint further alleges that there was illegality in the pre-canvassing process, during which mail-in votes are inventoried and begin to be processed prior to the closing of polls on Election Day. Democrat-majority counties are said to have substantially excluded the Trump campaign from access to the ballots, illegally denying the campaign the opportunity to “review and assess” them.

Also during the pre-canvass phase, the complaint alleges, election officials in Democrat-heavy counties contacted voters who appeared to have completed their ballots defectively, “such as [by] lacking the inner secrecy envelope or lacking a signature of the elector on the outer declaration envelope.” These voters were allowed to cure the defects. Voters in other districts were not extended this privilege, which, the campaign adds, undermined secrecy.

Then, post-election, the complaint maintains that the “receipt, review, opening, and tabulation” of mail-in ballots was hidden from the campaign during the canvassing process in Philadelphia and Allegheny Counties. The campaign alleges that its statutorily authorized observers were kept so far away from the canvassing and tabulation action that there was not meaningful access. The situation became sufficiently untenable that the campaign convinced the Commonwealth Court to order election officials to permit its observers to monitor the action within six feet. Yet, the complaint says, the officials “failed to comply,” by ignoring the order or allowing those processing the ballots to recede to remote areas.

For the most part, these claims merge into the contention that the state gave Democratic voters unfair advantages, and then adopted a process designed to conceal and cement these advantages. That brings Bush v. Gore into play. In that famous 2000 election case, the Supreme Court called a halt to the recount process ordered by the state supreme court in Florida. The 5–4 majority found that the state court’s rulings, as they were being executed by the counties in question, had resulted in widely disparate treatment of voters during the canvassing of ballots across counties — and sometimes within the same county.

The Court reasoned that disparate treatment that has the effect of canceling or diluting the votes of some voters, or that privileges some voters but not others, is unconstitutional. The majority faulted the state for capriciously failing to apply uniform standards in the canvassing of ballots. It further observed that the state’s on-the-fly process, if allowed to continue in the dubious quest to determine the intent of some voters, would prevent the state from certifying its results by the date mandated in federal law, thereby disenfranchising millions of voters.

I agree with commentators who believe the sounder position was outlined in the concurrence of the late Chief Justice William Rehnquist (joined by Justices Clarence Thomas and the late Antonin Scalia). While they joined Justices Anthony Kennedy and Sandra Day O’Connor in the majority’s equal-protection analysis, they explained that the principal problem was that the state court’s rulings had overridden the election rules enacted by the state legislature.

It is the state’s legislature, not its judiciary, that is constitutionally empowered to set the rules by which electors are appointed in presidential elections. Where the state legislature prescribes that this power is to be exercised by public election (as all states have now done), the election must be conducted in accordance with the procedures the legislature enacts — subject to such constitutional constraints as equal-protection principles and the power of Congress to set certain conditions (such as the time of the election).

In deciding Bush v. Gore, the Court recognized the danger that its equal-protection analysis was  potentially so expansive that it could be invoked regarding any treatment that was arguably disparate, even if such differences were justifiable or trivial. Consequently, the majority stressed that “our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”

If there is convincing evidence that the Trump campaign’s factual claims are true (and we must note that state officials vigorously dispute them), the courts, beginning with Judge Brann, will have to sort out whether the disparities at issue meet the Bush v. Gore test of actionable equal-protection violations. And particularly when it comes to the Pennsylvania court’s countermanding of the state legislature’s Election Day deadline for receiving ballots, the Trump campaign is also relying on the principles explicated in Chief Justice Rehnquist’s Bush v. Gore concurrence.

As I noted in yesterday’s column, Pennsylvania is the center of the action because without flipping the state in his favor, President Trump has no chance of reversing the apparent result of the election (and he would need, in addition, to flip at least two other states to get to the required 270 electoral votes). The Trump campaign vows that there will be more lawsuits in other states by week’s end.