It was pretty clear that’s where this one was heading, and I have serious doubts that the Trump campaign is going to do better if they try to appeal this up the appellate ladder. As I explained in my Slate piece, although Republicans have advanced a number of arguments that may appeal to some federal courts (like Purcell argument), arguments based upon the need for states to take more antifraud measures are losers because they are based on nothing more than speculation. Here’s what the district court said on that in today’s opinion:
The problem with this theory of harm is that it is speculative, and thus Plaintiffs’ injury is not “concrete”—a critical element to have standing in federal court. While Plaintiffs may not need to prove actual voter fraud, they must at least prove that such fraud is “certainly impending.” They haven’t met that burden. At most, they have pieced together a sequence of uncertain assumptions: (1) they assume potential fraudsters may attempt to commit election fraud through the use of drop boxes or forged ballots, or due to a potential shortage of poll watchers; (2) they assume the numerous election-security measures used by county election officials may not work; and (3) they assume their own security measures may have prevented that fraud.
All of these assumptions could end up being true, and these events could theoretically happen. But so could many things. The relevant question here is: are they “certainly impending”? At least based on the evidence presented, the answer to that is “no.” And that is the legal standard that Plaintiffs must meet. As the Supreme Court has held, this Court cannot “endorse standing theories that rest on speculation about the decisions of independent actors.” See Clapper v. Amnesty Int’l USA, 568 U.S. 398,
414 (2013).
The court also turned the kinds of rulings that have helped Republicans—about deferring to state processes—on its head when it comes to state measures easing burdens on voting during the pandemic:
Second, even if Plaintiffs had standing, their claims fail on the merits. Plaintiffs essentially ask this Court to second-guess the judgment of the Pennsylvania General Assembly and election officials, who are experts in creating and implementing an election plan. Perhaps Plaintiffs are right that guards should be placed near drop boxes, signature-analysis experts should examine every mail-in ballot, poll watchers should be able to man any poll regardless of location, and other security improvements should be made. But the job of an unelected federal judge isn’t to suggest election improvements, especially when those improvements contradict the reasoned judgment of democratically elected officials. See Andino v. Middleton, — S. Ct. —, 2020 WL 5887393, at *1 (Oct. 5, 2020) (Kavanaugh, J. concurring) (state legislatures should not be subject to “second-guessing by an unelected federal judiciary,” which is “not accountable to the people”) (cleaned up).
Put differently, “[f]ederal judges can have a lot of power—especially when issuing injunctions. And sometimes we may even have a good idea or two. But the Constitution sets out our sphere of decision-making, and that sphere does not extend to second-guessing and interfering with a State’s reasonable, nondiscriminatory election rules.” New Georgia Project v. Raffensperger, —F.3d —, 2020 WL 5877588, at *4 (11th Cir. Oct. 2, 2020). As discussed below, the Court finds that the election regulations put in place by the General Assembly and implemented by Defendants do not significantly burden any right to vote. They are rational. They further
important state interests. They align with the Commonwealth’s elaborate election-security measures. They do not run afoul of the United States Constitution. They will not otherwise be second-guessed by this Court.
We are still waiting on a ruling from the Supreme Court on a separate case coming from the state Supreme Court, one where Republicans may fare better.