In What I Consider to Be Among the Most Important Election Law Cases Before the November Election, Trump Campaign Renews Federal Challenge to Pennsylvania Voting Rules (with a Note on Nevada)

The federal case that had been put on hold pending the resolution of a parallel case in the Pa Supreme Court is now back on following the Pa. Supreme Court’s resolution of related state law claims. Here’s the Trump Campaign’s game plan filed in the federal case for what claims it plans to pursue and an aggressive timetable to get it done.

It still might be too late to get any relief given the Purcell Principle, but I see Pa. as the Hail Mary pass for the Trump campaign. Pa. is kind of the perfect storm if the race is close enough. You’ve got a state with poor election administration struggling during the pandemic, a state supreme court mostly changing rules along party lines to make it easier to vote, a Republican legislature that might try to exercise some rights to choose electors, and a path to the Supreme Court through this federal case. The Trump campaign is focusing on Pa. as the polling is closer there than in some other states.

On the merits I think the Trump campaigns claims are generally quite weak, as they are premised on fears of fraud that are not backed up by an evidence. They argue against drop boxes for example because of unsubstantiated fears of fraud. But of course the Supreme Court has allowed states to pass restrictive voting laws in the past without proof of an actuality (or even realistic potential for fraud). (This of course is a different procedural posture: it is a challenge to a state law on grounds that the state law promotes fraud.)

The other state I’m watching is Nevada, primarily because it is another swing state. It has a Democratic governor (but Republican Secretary of State) and it is doing an all-mail election for the fall. Both the President and AG Barr have made unsubstantiated claims of fraud in relation to Nevada. A federal district court just held that the Trump Campaign had no standing in the Nevada case, in part because its voter fraud claims are speculative. This could end up in SCOTUS too.

If the election is not close in the electoral college, these cases won’t matter. But if it is close, increasingly PA and NV seem to be the play.

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