Trump’s latest suit DOA, legal experts say
President Donald Trump’s campaign launched its broadest challenge yet to the results of the election that appears destined to push him from office, accusing Pennsylvania officials of running a “two-tiered” voting system – in-person and mail – that violates the U.S. Constitution.
Legal experts said the case has little chance of succeeding, for a variety of reasons: Courts are wary of invalidating legally cast ballots. The issues raised, even if true, don’t represent a constitutional question. And mail voting, used in many states, is both common and constitutional.
The suit has “lots of complaints about different things, and it’s not easy to see how they all fit together,” said Kermit Roosevelt, a professor at the University of Pennsylvania Law School who focuses on constitutional law.
“This has a very ‘throw it all at the wall and see what sticks’ feel,” he said.
Late Monday, Attorney General William Barr authorized U.S. attorneys to pursue any “substantial allegations” of voting irregularities during the election, contradicting longstanding Justice Department practice of not taking steps that could affect election results.
“Such inquiries and reviews may be conducted if there are clear and apparently-credible allegations of irregularities that, if true, could potentially impact the outcome of a federal election in an individual State,” Barr said in a memo to federal prosecutors.
The memo prompted Richard
Pilger, who oversees election crime investigations within the Justice Department, to step down from his post.
The Trump campaign’s lawsuit alleges that Pennsylvania’s mail voting system, used in a general election for the first time last week, was fatally flawed by mismanagement and improper changes or interpretations of election laws, which enabled votes to be cast and counted with virtually no oversight.
It claims Trump campaign observers were blocked from the access needed to detect and challenge inadequate verification of voters’ identities and other alleged improprieties.
But as with other lawsuits filed by the Trump campaign and its allies, the federal complaint offered little evidence to back its claims.
Most mail ballots in Pennsylvania favored Joe Biden, the Democratic challenger who has been projected the winner. The lawsuit argues that in-person voting, which favored Trump, had stricter safeguards, including adequate verification of voters’ identities and monitoring by observers.
Erwin Chemerinsky, dean of the University of California-berkeley School of Law, said in an email that he could not imagine federal courts citing insufficient oversight of ballot counting “as the basis for disallowing votes.”
“What is crucial is that courts are very reluctant to disqualify ballots that were lawfully cast,” Chemerinsky said.
Rick Hasen, an election law expert from the University of California-irvine, said the lawsuit is “extremely unlikely” to change the outcome in Pennsylvania or the national outcome favoring Biden.
“Its key claim, that there’s some inequality in the treatment of mail-in ballot and in-person ballots, could have been brought months ago,” Hasen said. “It does not seem calculated to get any relief other than delay.”
“Neither Trump nor (Democratic presidential candidate Hillary Clinton) raised questions then,” said David Becker, executive director and founder of the Center for Election Innovation and Research.
“We literally have done mail-in voting all over the country for almost 200 years. This is not a new thing.”