Rick H. links to the recent Pennsylvania court decision and notes that there could be a Legislature Thereof Clause-style challenge to it, a la Chief Justice Rehnquist’s opinion in Bush v. Gore as ratified in some form in Moore v. Harper. But another Bush v. Gore issue may arise, that of Equal Protection.
Plaintiffs only sued two counties (Philadelphia and Allegheny), not the other 65. When the RNC as intervenors argued that the other 65 were indispensable parties (and must be a part of the lawsuit, or the case would have to be thrown out or the parties added), the court said this:
As for their equal protection concerns, Republican Party Intervenors do not develop their argument in this regard, as they only cite, without any substantive explanation, the above cases for the proposition set forth therein in passing that all laws regulating the holding of elections shall be uniform across the state. (See Repub. Party Intervenors’ Memo. in Supp. of ASR at 21-42 & Memo. of Law in Opp’n at 15-17.) While we generally agree with this well-established principle of uniformity, it is also well known, and undisputed in this case, that all 67 county boards of this Commonwealth do not conduct elections in their respective counties with strict uniformity to each other county in all respects. See generally RNC II (involving some county boards’ notice and opportunity to cure procedures with respect to absentee and mail-in ballots); see also Pa. Democratic Party, 238 A.3d at 382-83 (discussing Repub. Party of Pa. v. Cortés, 218 F. Supp. 3d 396, 409 (E.D. Pa. 2016) (in which the Eastern District Court of Pennsylvania considered the constitutionality of the Election Code’s poll watcher residency requirement and explained that Pennsylvania’s General Assembly enacted a county-based scheme to manage elections within the state, endeavored to allow county election officials to oversee a manageable portion of the state in all aspects of the process, and ensured as much coherency in that patchwork system as possible)). In the absence of any other citation to binding authority stating that any order issued in this case, by an en banc panel of this Court, would have no effect as it relates to the other 65 county boards, we decline to hold that we lack jurisdiction on these bases.
It seems odd to say this, then turn around and say that there’s a “substantial threat of disenfranchisement” for voters in these two counties that merits relief. To me, that would seem to weigh in favor of a need for uniformity, something beyond just “management” of how elections are administered.
Now, this is the substantive argument of what the equal protection argument means. (Relatedly, and interestingly, there seems to be little discussion of state law on the topic of the “well-established principle of uniformity.”)
But the argument here arises in the procedural dispute about indispensible parties. The RNC simply noted the other 65 counties were necessary, the court disagreed (and there are other things that must be established to show that a party is indispensible), so any development of the substantive issues ends up taking a back seat.
That said, it could well open up another lawsuit after this one, if two counties are under a court order that compels them to do something that a court has identified must be done or a “substantial threat of disenfranchisement” will take place, while the other 65 counties are under no such obligation. And, of course, more lawsuits are hardly what we’d like to see…. Pennyslvania’s deeply decentralized election system remains a source of plenty of litigation.