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Law experts say Trump’s Pa. challenge will fail

Pa. claim has ‘lots of complaints’ on issues

- Kevin McCoy, Kristine Phillips, Dennis Wagner and Donovan Slack Contributi­ng: David Jackson

Lawsuit alleges state’s mail voting was fatally flawed, with no evidence.

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 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.

The lawsuit alleges the state’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 lawsuit argues that in-person voting, which favored Trump, had stricter safeguards, including adequate verificati­on of voters’ identities and monitoring by observers.

In-person voting was marked by “transparen­cy and verifiabil­ity,” the lawsuit claims. Mail balloting, on the other hand, “was cloaked in darkness and complied with none of those transparen­cy and verifiabil­ity requiremen­ts.”

David Becker, executive director and founder of the Center for Election Innovation and Research, said the Trump campaign “continues to spread lies about transparen­cy of this process and the access to observers.”

Noah Feldman, a professor at Harvard Law School, noted Pennsylvan­ia’s system for identifyin­g voters is the same – verificati­on of their signature – whether they cast ballots in person or by mail.

The lawsuit also criticizes the threeday extension of the deadline for receiving absentee and mail votes, from Election Day until Nov. 6. The change, recommende­d by the secretary of state’s office and upheld by the Pennsylvan­ia Supreme Court, is now the subject of a state GOP request for an emergency injunction by the U.S. Supreme Court.

Trump’s campaign lawsuit seeks a temporary injunction preventing the state from certifying election results.

Laura Humphrey, a spokeswoma­n for Secretary of the Commonweal­th Kathy Boockvar, said the office could

not comment on pending litigation. Pennsylvan­ia Attorney General Josh Shapiro called the suit “meritless.”

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.”

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. “It does not seem calculated to get any relief other than delay,” Hasen said.

Barry Richard, who represente­d President George W. Bush in the legal fight over the 2000 presidenti­al race, said the alleged violations raised in the complaint do not rise to the level of federal violations that could go before the U.S. Supreme Court. The Trump campaign invokes the Equal Protection Clause, alleging mail-in voters were not subjected to the same verificati­on and transparen­cy as in-person voters. That’s not a violation of the Equal Protection Clause, Richard said, because voters can choose whether to vote in person or by mail, and the issue at hand is that ballots – not voters – are treated differentl­y.

“This has a very ‘throw it all at the wall and see what sticks’ feel.”

Kermit Roosevelt University of Pennsylvan­ia Law School

 ?? MICHAEL KARAS/USA TODAY NETWORK ?? People celebrate Joe Biden being declared the presidenti­al winner near the Pennsylvan­ia Convention Center on Saturday.
MICHAEL KARAS/USA TODAY NETWORK People celebrate Joe Biden being declared the presidenti­al winner near the Pennsylvan­ia Convention Center on Saturday.

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