“New Lawsuit to Halt Ballot Cures in Pennsylvania Could Preview Trump’s Postelection Strategy”

I have written this piece for Slate. It begins:

Republicans filed a new lawsuit in Pennsylvania on Tuesday, and it is a window into the kind of post-election maneuvering that we could see both legally and politically should the election come down to the Keystone State.

The big Pennsylvania litigation before today involved a decision of the state Supreme Court, relying on the state constitution, to extend the date for receipt of mailed ballots for three days given the pandemic, until Nov. 6. That lawsuit could still be revived after the election, and there could be a fight over whether those ballots should be counted. (There’s a very strong argument those ballots should be counted, but the votes have been cabined and some of the U.S. Supreme Court’s conservatives have signaled antipathy to the state court’s decision.) This is one of only a number of lawsuits that could pop up in a kind of trench warfare should the election be razor-thin in Pennsylvania. People often forget that there were over 20 lawsuits in Florida and not just Bush v. Gore back in 2000.

This latest lawsuit alleges that Montgomery County, Pennsylvania has been contacting voters who have voted by mail and whose ballots have a defect (like a missing signature) to give the voters a chance to fix (or “cure”) the problem. Not all the counties are doing so, and a Republican candidate whose district includes Montgomery argues that, under the Supreme Court’s Bush v. Gore decision, it is a federal equal protection violation for some voters to be notified about curing their ballots and others not. They want the practice to stop and for ballots that were cured to not be counted.

The federal claim is really weak for three reasons…


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