Law experts say Trump’s Pa. challenge will fail
Pa. claim has ‘lots of complaints’ on issues
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