Running List of Reasons the Trump Campaign’s Latest Pennsylvania Lawsuit Won’t Succeed and Won’t Affect the Election Outcome

I’ve been getting a lot of press queries about the latest Trump filing in Pennsylvania, this one in federal court, seeking to delay the certification of the vote. I don’t have time to write up a full analysis, but I’m going to post (and periodically add to) this running list of fundamental problems with using the suit as a vehicle to alter the outcome of the presidential election:

  • The core idea of the complaint, that the different procedures for people to vote by mail versus voting in person constitutes and equal protection violation, is ludicrous.
  • First, these differences were obvious for months and nothing prevented the campaign from suing earlier over this; a late suit now is barred by laches (otherwise you give campaign an option to sue over things only if they lose and disenfranchise voters who relied on the legality of the existing system). See my October 29 post, Laches and Post-2020 Election Challenges: Why Many of the Republican Gambits Challenging Election Laws Will Come Too Late
  • Second, having different procedures for mail in and in person balloting does not create an equal protection violation under Bush v. Gore or any other authority I’m aware of. If this claim succeeded, it would mean that voting was unconstitutional across the entire country. The claim is especially weak when voters had the choice to vote using either system.
  • It is not clear that federal courts should even get involved here. The Electoral Count Act conceives of a state role, not a federal role, for resolving disputes over the election and there are strong reasons for abstention by a federal court when there are ongoing state procedures toward certification. A federal ruling could endanger the ability of the state to submit its electoral college votes by the Dec. 8 safe harbor deadline.
  • The other claims in the complaint are mostly retreads of issues that have been rejected legally, factually, or both in other lawsuits. There’s no proof of widespread fraud (or even a little bit of fraud).
  • There are not enough questionable ballots at issue to make a difference in Pennsylvania. Biden is currently ahead by about 45,000 votes, and may well be ahead by 100,000 when all the votes are counted. Not only are there not enough ballots at issue; there’s no proof that illegal ballots were voted for Biden and not Trump, which should be necessary to meet the high burden of overturning an election result. Indeed, even when combined with the other cases in PA, there are not enough ballots at issue to make a difference. (There appear to be only about 7800 ballots at issue in the litigation over the 3 day extension of voting.)
  • Even if there were some way to stop certification in Pennsylvania, Biden’s electoral college lead does not depend upon Pennsylvania, so there’s no path absent litigation in multiple states raising crazy legal theories or those unsupported by facts to overturn election results. it would be like throwing three Hail Marys in a row.
  • [More to come]
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