Republicans filed a new lawsuit in Pennsylvania on Tuesday, and it is a window into the kind of postelection maneuvering that we could see both legally and politically should the election come down to the Keystone State.
The big Pennsylvania litigation before today involved a decision of the state Supreme Court, relying on the state constitution, to extend the date for receipt of mailed ballots for three days given the pandemic, until Nov. 6. That lawsuit could still be revived after the election, and there could be a fight over whether those ballots should be counted. (There’s a very strong argument those ballots should be counted, but the votes have been cabined and some of the U.S. Supreme Court’s conservatives have signaled antipathy to the state court’s decision.) This is one of only a number of lawsuits that could pop up in a kind of trench warfare should the election be razor-thin in Pennsylvania. People often forget that there were more than 20 lawsuits in Florida and not just Bush v. Gore back in 2000.
This latest lawsuit alleges that Montgomery County, Pennsylvania, has been contacting voters who have voted by mail and whose ballots have a defect (like a missing signature) to give the voters a chance to fix (or “cure”) the problem. Not all the counties are doing so, and a Republican candidate whose district includes Montgomery argues that, under the Supreme Court’s Bush v. Gore decision, it is a federal equal protection violation for some voters to be notified about curing their ballots and others not. They want the practice to stop and for ballots that were cured to not be counted.
The federal claim is really weak for three reasons. First, as with lots of the Republican lawsuits we have seen this week in Texas and elsewhere, Republicans have waited way too long to sue. The Philadelphia Inquirer ran an article on Thursday about this practice, and this is the first suit challenging the practice. In the meantime, voters and election officials have relied upon the vote cure process. There’s no reason Republicans could not have come to court sooner.
Second, whether or not the practice of curing ballots violates state law is a question that should be directed to state courts, rather than federal court. Most of the allegations in the complaint revolve around the idea that Pennsylvania law does not allow the curing of absentee ballots. That could well be wrong under state law; the state Supreme Court declined to require curing, but it didn’t say it was forbidden.
Finally, the equal protection claim under Bush v. Gore is weak. In that case, the court majority found an equal protection violation when a state court ordered a statewide recount with inconsistent standards across the state, but it explicitly wrote that “The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections.” If one county having a better cure process than another in a state is an equal protection violation, then every variation in the number of polling places, hours of voting, and everything else could be an equal protection violation too. Yet Bush v. Gore was clear against local election micromanagement.
But to say the claim is weak doesn’t mean that courts will necessarily reject it; we have seen some crazy court rulings these last few weeks. And perhaps the real endgame, should we be unfortunate enough for this to all come down to Pennsylvania, is not to get the courts to save Trump but instead to give the Pennsylvania Legislature an excuse to call the election failed and to try to appoint its own Trump slate of presidential electors.