Far from persuading the Court to grant the petition, they will only reconfirm the justices’ apparent conviction that this is a toxic political dispute.
The campaign’s request for the Court to intervene in Pennsylvania’s administration of the election is unlikely to find an audience.
T he Trump campaign’s emergency petition asking the U.S. Supreme Court to review Pennsylvania’s administration of the 2020 election and reverse President-elect Joe Biden’s victory is a frustrating document.
I refer not merely to its untimeliness, the commonwealth having certified Biden as the winner weeks ago, and the Electoral College having already voted on December 14, with Pennsylvania’s 20 votes cast for Biden. As a matter of craftsmanship, the petition for certiorari, principally penned by Chapman Law School’s John Eastman, is superior to other pleadings that the campaign has generated. It also addresses matters of great significance for Americans concerned about election integrity. In an era when the Left has largely succeeded in its push to liberalize voting rules, such that absentee voting, including no-excuse mail-in voting, is now widely used, the issues raised deserve consideration — especially by Congress and state legislatures.
Yet the petition falls woefully short as a legal application to the nation’s highest court. It fails even to mention, much less address, the Third Circuit precedent that precludes the claims it advances — precedent that is not unknown to the campaign, since it dramatically affected the legal strategies pursued in earlier rounds of litigation. Those earlier rounds, too, are essentially ignored as if they never happened — as if the president expects the Supreme Court to examine his grievances on tabula rasa, taking no notice of earlier contradictory positions and forfeited claims.
There are, moreover, the now-familiar flaws: The campaign continues to complain about the potential for fraud while not alleging any actual fraud — even as, for public consumption, the president persists in portraying the election as pervasively fraudulent to the point of being “rigged.” And, without having established that the alleged misconduct materially affected the outcome of the election, much less resulted in massive fraud, the campaign would have the high court nullify the election, disenfranchise 6.8 million Pennsylvanians, and delegate the state legislature to select new electors — never mind that the electors have already been chosen by popular election, been certified under state law, and cast their votes pursuant to federal law.
The campaign alleges three failures by state officials to comply with Pennsylvania’s election laws, and incorporates a fourth that (as we have repeatedly noted) is already before the U.S. Supreme Court, which has not yet decided whether to grant review. The four claimed improprieties are:
- The prohibition on what is alleged to be statutorily-directed signature review — i.e., the comparison between the voter’s signatures as they appear on file and on the outside ballot envelope — just 11 days before the election.
- Election officials’ prevention of meaningful monitoring by campaign and party poll-watchers of the ballot-canvassing procedures.
- The counting of ballots as to which voters failed to “fill out, date, and sign” the declaration on the outer envelope, as statute prescribes.
- The state supreme court’s extension by three days beyond Election Day of the statutory deadline for election officials to receive and count ballots (the case already before the Supreme Court).
Suffice it to say that these allegations raise important election-integrity issues. They ought to be addressed. Many of us agree (certainly, I do) that mail-in voting is rife with potential for fraud. I would like to return to the norm of in-person voting on Election Day (make it two or three consecutive days if that’s more realistic for accommodating approximately 160 million voters). Let absentee voting be the non-preferred exception it has traditionally been, permissible only based on a worthy excuse. We should all vote at the same time based on the same available information. Progressive opinion, which punches above its weight, runs against this. I’d be delighted to have that debate. If not, or at least in the meantime, we should be able to make the point that if we are going to have mail-in voting, then that argues for ratcheting up election-integrity provisions, not further loosening them, as courts and bureaucrats, especially in blue states, are wont to do.
All that said, though, what I’ve just described is a prospective project. As far as the 2020 election is concerned, the Trump campaign has already lost on at least three of these issues, and arguably on all of them.
The campaign’s petition repeatedly states its core argument, which draws on the late Chief Justice William Rehnquist’s Bush v. Gore (2000) concurrence (joined by justices Clarence Thomas and the late Antonin Scalia). To wit, the Constitution’s Electors Clause (Art. II, Sec. 1, Cl. 2) empowers the state legislatures to determine the “Manner” of appointing presidential electors; and, as Chief Justice Rehnquist put it, “a significant departure from the legislative scheme for appointing Presidential electors presents a federal constitutional question” — i.e., one fit for resolution by the federal courts.
Though not a majority opinion, the Rehnquist formulation arguably contradicts the reasoning of Trump-appointed federal district judge Brett H. Ludwig, who ruled against the campaign in Wisconsin. (The petition does not make such an argument, there being scarce mention of decisions that have gone against the campaign.) Judge Ludwig reasoned that the campaign’s Electors Clause theory confounded the manner of conducting elections, which he narrowly construed to mean the mode of popular election, with means by which popular elections are administered, which he took to be of scant concern for federal courts. Rehnquist’s description of a comprehensive “legislative scheme for appointing electors” undercuts such parsing, suggesting that courts will examine at least some election procedures if they stray too far from state law.
But here is the problem: As we have previously detailed, in Bognet v. Boockvar (November 13, 2020), the federal appeals court for the Third Circuit, which includes Pennsylvania, held that private parties, including candidates for public office, do not have standing to raise Electors Clause claims.
Far from being unknown to the Trump campaign, this ruling induced the campaign to abandon Electors Clause counts it raised last month in Pennsylvania federal district court. As district judge Matthew Brann recounted in rejecting the campaign’s post-election challenges, “Bognet held that only the [Pennsylvania] General Assembly had standing to raise claims under the Elections and Electors Clauses. . . . This ruling effectively shut the door on Plaintiffs’ allegations under those clauses of the Constitution.” Consequently, the campaign dropped from its original complaint most of the Electors Clause claims, which centered on the allegation that poll watchers were denied meaningful access to canvassing — one of the claims it now asks the Supreme Court to review. Then, after filing its first amended complaint (FAC), the campaign forfeited its remaining Electors Clause claim. As Judge Brann observed:
Plaintiffs acknowledge that under the Third Circuit’s decision in Bognet, this Court cannot find that Plaintiffs have standing for their Elections and Electors Clauses claim in the FAC. Plaintiffs represent that they have included this claim in the FAC to preserve the argument for appellate review. Because Plaintiffs have made this concession, and because the Third Circuit’s decision in Bognet is clear, this Court dismisses Count II for lack of standing without further discussion.
Nevertheless, when the campaign moved on to appellate review, it did not seek to press the Electors Clause claims. As the Third Circuit noted:
The Campaign does not even challenge the dismissal of Counts Three, Five, and Nine, the Electors and Elections Clause counts. It concedes that under our recent decision, it lacks standing to pursue alleged violations of those clauses. Bognet v. Sec’y Commonwealth of Pa. . . . Given its concession, we need not consider the issue anymore.
Now, in the campaign’s Supreme Court petition, the word “Bognet” does not appear. There is no discussion of the controlling case in the Circuit on the question of whether the campaign has standing to raise its claims — notwithstanding that the Third Circuit’s unanimous opinion (written by that tribunal’s chief judge) relies heavily on Supreme Court precedent. Neither is there in the campaign’s petition to the higher court any allusion to the fact that, in the lower courts, the campaign forfeited and then failed to appeal its Electors Clause claims. In litigation, you can’t get around fatal defects by not mentioning them.
Even putting that aside, the campaign would lose on the three allegations it presses in the petition. (I won’t belabor the fourth claim, regarding what I believe is the state supreme court’s unjustifiable three-day extension — the petition does not rehash it, and we’ve already covered it extensively, including (a) the suggestion of the claim’s merit by three members of the Supreme Court, but also (b) the fact that it involves fewer than 10,000 ballots and thus would have made no difference in the outcome of an election Biden won by over 80,000.)
Signature Verification
The campaign is simply wrong in its claims about signature review. The theory of its claim is that, in eliminating signature review, Secretary of State Kathy Boockvar effectively amended law enacted by the state legislature. But there is nothing in Pennsylvania election law that requires signature verification.
The Commonwealth’s law calls for proof of identity (an examination of the voter’s driver’s license or similar statutorily approved form of identification). While the ballot certification must be signed, the statute does not mention signature comparison. To be sure, the campaign is right that election integrity would be enhanced by a required practice of matching the signature on the ballot envelope to the signature on file. But for present purposes, that is beside the point. At issue is law, not policy; what state statutes say, not what they ought to say.
Obviously realizing that the text of the relevant statutes belies its claim, the campaign subtly shifts, contending that the law authorizes signature matching, and that such matching has been done in prior elections. That, however, reduces it to a matter of discretion, not a mandate.
The campaign contends that the change was made at the eleventh hour by a willful Democratic secretary, backed by an elected court whose majority consists of similarly willful Democrats. That may be true. Nevertheless, beside the stubborn fact that state law does not require signature matching (so Secretary Boockvar did not change state law), the campaign omits that (a) the state supreme court’s ruling was unanimous on this issue (i.e., the tribunal’s conservative members did not dissent), and (b) even before that, on October 10, Pennsylvania federal district judge Nicholas Ranjan rejected the campaign’s signature-verification claim. The campaign did not appeal the ruling of either Judge Ranjan or the state supreme court.
Lack of Meaningful Monitoring of the Voting-Counting Process
When a litigant fails to file a timely appeal of a ruling, it is bound by that ruling. That is what the Third Circuit repeatedly explained in its unanimous opinion rejecting the Trump campaign’s final federal lawsuit in Pennsylvania. And it invoked this principle specifically in turning aside the campaign’s allegation that county boards of election had prevented Trump poll watchers from meaningful monitoring of the vote-counting process. As the court elaborated:
Nothing in the Due Process Clause requires having poll watchers or representatives, let alone watchers from outside a county or less than eighteen feet away from the nearest table. The Campaign cites no authority for those propositions, and we know of none…. And the Campaign litigated and lost that claim under state law too. The Pennsylvania Supreme Court held that the Election Code requires only that poll watchers be in the room, not that they be within any specific distance of the ballots.
To my mind, the Trump campaign could not be more right, as a matter of logic, that the point of permitting a campaign’s surrogates to inspect the canvass is to have the inspection be meaningful, not just a simulacrum of fairness. Still, (a) it is not a federal requirement to have poll watchers at all, (b) state law does not specify what they are permitted to do, (c) the highest court in the state has construed state law to mean watchers are merely permitted to be present, and (d) the campaign failed to timely appeal that ruling. Ergo, even if the campaign had standing, the Supreme Court would not entertain the claim under these circumstances.
Missing Ballot-Envelope Information
In complaining about the fact that some counties, Philadelphia in particular, counted ballots in which voters failed to write in either name or address information, the Trump campaign omits the most crucial fact: Again and again, the campaign told federal and state courts that it was not alleging fraud.
The campaign argues that state law requires voters to fill in name and address information — it says they “shall” do so. The campaign further urges that this statutory requirement must be exactingly enforced because it is an anti-fraud measure, and that it was thus inexcusable and unconstitutional for the state supreme court to hold that instances of non-compliance did not call for invalidating ballots.
Yet the campaign avoids mentioning not only its multiple assurances to judges that it was not alleging that voters were engaged in fraud, but also the salience of fraud under state law, as interpreted by the courts. That is, the campaign argues as if the state supreme court had said that statutory fill-in-the-blanks requirements don’t matter. To the contrary, the court relied on a longstanding principle of Pennsylvania law: If there is proof of fraud, ballots will be invalidated for failure to fill in name and address information; but if fraud is not alleged or proved, the state’s default position is that votes should be counted and non-compliance with technical requirements will be overlooked.
Absent fraud, the court stressed, this is a minor issue: The ballots come with pre-printed name and address information (and, as noted above, there is a verification requirement, though no signature matching). While voters should nevertheless write in the information where indicated, some — as the courts have noted — undoubtedly fail to do this because they assume it’s unnecessary if the printed information is correct.
In any event, as the Third Circuit held (my italics):
The Campaign cannot use this [federal] lawsuit to collaterally attack those prior rulings [that found against it on the same issues]. On Counts One, Two, Four, and Six, the Campaign has already litigated whether ballots that lack a handwritten name, address, or date on the outer envelope must be disqualified. . . . The Pennsylvania Supreme Court ruled against the Campaign, holding: “[T]he Election Code does not require boards of elections to disqualify mail-in or absentee ballots submitted by qualified electors who signed the declaration on their ballot’s outer envelope but did not handwrite their name, their address, and/or date, where no fraud or irregularity has been alleged.” . . . That holding undermines the Campaign’s suggestions that defective ballots should not have been counted.
It is also worth noting that, when this issue was argued in the lower state court on November 13, at stake were just 8,329 votes. Counsel conceded that the campaign was “not proceeding based on allegations of fraud or misconduct.” She did not question either the eligibility of the voters or the timeliness of the ballots; the campaign made clear that it was only “alleging that the ballots were not filled out correctly.” (See Petition, Appendix A, pp 13–14.) We do not know from the petition how many non-compliant ballots there were statewide, but there is no allegation that they would have totaled enough to approach Biden’s 80,000-vote victory margin.
Other Issues
There is no point belaboring the other claims curtly raised in the campaign’s petition. Its equal-protection claims were rejected by the Third Circuit and would, in any event, face a Bognet hurdle on standing. Its “substantive due process” claim is contingent on the election’s having been conducted in a manner that reached “the point of patent and fundamental unfairness,” a conclusion unsupported by the petition (to say nothing of the prior lawsuits).
In the end, the petition — like the Trump campaign’s post-election strategy in general — seems more a diatribe. Without mounting a convincing legal case for Supreme Court intervention, the petition exhorts the justices that, in “these tumultuous times,” they owe it to the country to jump into the fray. Darkly, the campaign asserts that not “since the election of 1860” (i.e., not since the election on the eve of the Civil War) has the nation been so “deeply divided.” It is chilling rhetoric.
The campaign goes on to insist (relying on a poll recently generated “by the reputable Rasmussen polling firm”) that 47 percent of Americans believe it “was ‘likely’ or ‘very likely’ the election was stolen from the current incumbent president.” However reliable this may be, there is no discussion of how much the incumbent president may have contributed to such sentiments by ceaselessly asserting that the election was “rigged” by massive fraud — an allegation the campaign has failed to prove in court, demurring when given opportunities to present whatever evidence it may have.
The petition does, however, repeat familiar campaign talking points: President Trump won both Florida and Ohio, becoming only the second candidate ever to do so while losing the election; even though these are normally closely contested “swing states,” the president won them comfortably; he won a large majority of “bellwether” counties that “almost always [go] for the candidate who wins the election”; and “he won 26 percent of non-white voters, the highest percentage for any Republican candidate since 1960.”
One can easily imagine counterclaims focused on the unique intensity of the president’s unpopularity among his large opposition, and the effect that clearly had on historic voter turnout — Biden’s unprecedented haul of 81 million popular votes, along with the fact that no candidate has ever lost the popular vote by 7 million yet won an electoral majority. But whatever the merits may be of these competing contentions, they are not legal arguments. Far from persuading the Supreme Court to grant the petition, they will only reconfirm the justices’ apparent conviction that this is a toxic political dispute — one they need not entertain and want no part of.