By Kevin McCoy, Kristine Philips, Dennis Wagner and Donovan Slack | Courtesy USA TODAY
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.
The Fox News anchor Neil Cavuto on Monday said ‘not so fast’ as he cut away from Kayleigh McEnany’s ‘baseless claims’ of election fraud.
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.
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 supported Biden
Most mail ballots in Pennsylvania favoured 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.
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. Trump campaign observers and Republican Party observers were present at every moment that every ballot was considered in Pennsylvania.”
He said the Trump campaign admitted as much in a hearing before a federal judge last week, when a lawyer said there were “a non-zero number” of observers from the campaign present during ballot counting in Philadelphia.
Noah Feldman, a professor at Harvard Law School, noted that 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 three-day 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
Legal experts say lawsuit has no merit
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” and said the election was “overseen by bipartisan election officials and was lawful, fair and secure.”
Shapiro said the lawsuit will end up like others filed in Pennsylvania: “found to have no merit by courts at all levels.”
Legal experts agreed.
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.
“It does not seem calculated to get any relief other than delay”– RICK HASEN, AN ELECTION LAW EXPERT FROM THE UNIVERSITY OF CALIFORNIA
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.”
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 – including unequal treatment of in-person and mail-in voters, the unauthorized extension of time to resolve signature issues, unsolicited mail-in ballots sent to voters, and positioning poll watchers far from ballot processing – do not rise to the level of federal violations that could go before the U.S. Supreme Court.
If upheld, allegations would cast shadow over mail voting elsewhere
The Trump campaign invokes the Equal Protection Clause, alleging mail-in voters were not subjected to the same verification and level of 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.
Danielle Lang, co-director of voting rights and redistricting at the Campaign Legal Center, an organization that supports unrestricted access to voting, said the lawsuit “is essentially an attempt to disallow mail-in voting after the fact.” By extension, that would cast a shadow over the accuracy and reliability of mail voting in other states, including those that Trump won, she said.
The secretary of state’s guidance, Becker said, was known well before the election and litigated. Now that they know the score, the Trump campaign wants to change the rules, he said.
And Laurence Tribe, a constitutional law expert at Harvard Law School, said the lawsuit “fails to allege facts sufficient to support a conclusion that the relief sought would alter the election’s result – a key difference between this complaint and the submission leading the Supreme Court to intervene in the state recount in Bush v. Gore” in 2000.
As of Monday, Biden led in Pennsylvania by more than 45,000 votes – greater than Trump’s lead when he won Pennsylvania in 2016.
“Neither Trump nor (Democratic presidential candidate Hillary Clinton) raised questions then,” Becker said. “We literally have done mail-in voting all over the country for almost 200 years. This is not a new thing.
“Are they complaining about mail-in voting in Utah where President Trump won and which has always done mail-in voting? Are they complaining in other states, such as Ohio and Florida, which saw massive amounts of mail-in voting?”