{"id":274349,"date":"2020-11-06T09:41:45","date_gmt":"2020-11-06T14:41:45","guid":{"rendered":"https:\/\/canadianinquirer.net\/v1\/?p=274349"},"modified":"2020-11-06T09:41:45","modified_gmt":"2020-11-06T14:41:45","slug":"trumps-pennsylvania-lawsuits-invoke-bush-v-gore-but-the-supreme-court-probably-wont-decide-the-2020-election","status":"publish","type":"post","link":"https:\/\/canadianinquirer.net\/v1\/2020\/11\/06\/trumps-pennsylvania-lawsuits-invoke-bush-v-gore-but-the-supreme-court-probably-wont-decide-the-2020-election\/","title":{"rendered":"Trump’s Pennsylvania lawsuits invoke Bush v. Gore \u2013 but the Supreme Court probably won’t decide the 2020 election"},"content":{"rendered":"
\"\"<\/a>
But this race is not likely to be decided by the Supreme Court. (File photo: Tingey Injury Law Firm\/Unsplash)<\/figcaption><\/figure>\n

The Trump campaign has filed two lawsuits in federal court over ballot counting and voting deadlines<\/a> in Pennsylvania, threatening to take the election to the Supreme Court. Both consciously echo the two main legal theories of Bush v. Gore<\/a>, the infamous Supreme Court case that decided the contested 2000 presidential election.<\/p>\n

But this race is not likely to be decided by the Supreme Court.<\/p>\n

There are several reasons, sitting at the intersection of law and politics, why the ghosts of Florida past won\u2019t rise again in Pennsylvania. As a law professor<\/a> who\u2019s authored a book on election reform<\/a>, I rate success in Trump\u2019s efforts to wrench back Biden\u2019s lead through litigation as a real long shot, though not out of the question.<\/p>\n

Equal protection<\/h2>\n

Trump\u2019s latest Pennsylvania lawsuit draws on the \u201cequal protection\u201d argument cited in Bush v. Gore<\/a>.<\/p>\n

In the 2000 case, Democratic candidate Al Gore challenged Florida\u2019s first machine-generated vote count when thousands of voters had problems marking their punch card ballots. The Florida Supreme Court allowed a statewide recount to ensure that all legal votes were counted.<\/p>\n

But the standards for counting the infamous \u201changing chads\u201d \u2013 incomplete marks on those punch card ballots \u2013 varied from county to county. The U.S. Supreme Court held that this lack of uniformity violated the Equal Protection Clause of the Constitution, which guarantees equal weight for votes<\/a>. The court shut down the recount and declared Bush, the Republican candidate, the winner in Florida \u2013 and therefore of the 2000 election.<\/p>\n

Republicans are trying a similar play in Pennsylvania with a legal claim filed on Election Day<\/a>.<\/p>\n

In some Pennsylvania counties, election officials were contacting voters whose mail-in ballots were disqualified for technical reasons<\/a> to confirm their signature or fill in missing identifying information, validating their ballot so it will count. Since only some Pennsylvania counties were doing this \u201cballot curing\u201d process, the Trump camp argues, the state\u2019s lack of uniformity violates the Equal Protection Clause<\/a>.<\/p>\n

No matter what the lower courts rule, the plaintiffs will likely take this case, which makes a federal constitutional claim, to the Supreme Court.<\/p>\n

The court might decline to take it for any number of reasons. One is that in Bush v. Gore, the justices actually cautioned that their decision was unique to Florida\u2019s 2000 vote count and should not be given much weight as precedent<\/a>.<\/p>\n

State legislatures<\/h2>\n

Trump\u2019s other Pennsylvania legal challenge, which was filed in state court back in September<\/a>, is also rooted in Bush v. Gore. It invokes an often overlooked concurring opinion in that case, which advanced an alternate theory for handing Bush a win.<\/p>\n

The opinion, written by Chief Justice William Rehnquist as a supplement to the majority decision, is rooted in the \u201cplenary authority\u201d of state legislatures to allocate Electoral College votes<\/a>. Under Article II of the Constitution<\/a>, state legislatures have total power to decide how their Electoral College votes should be awarded \u2013 they don\u2019t even have to hold a presidential election if they don\u2019t want to. Whatever their process, Rehnquist wrote, it should be respected<\/a>; no court, state or federal, should disturb it.<\/p>\n

That \u201cplenary authority\u201d is uncontroversial. But Rehnquist\u2019s concurrence is. In it, he argued that by ordering an emergency recount whose timing and deadlines deviated from the legislatively provided election rules, Florida\u2019s Supreme Court was usurping the Florida legislature\u2019s plenary authority.<\/p>\n

This \u201cArticle II theory\u201d is considered rather fringe \u2013 but Republicans are advancing it in Pennsylvania.<\/p>\n

In September, the Pennsylvania courts agreed with the Democratic Party that due to COVID-19-related concerns, mail-in ballots received up to three days after the election could still be counted<\/a>, even if the post office neglected to affix a legible postmark. In October, the state\u2019s Supreme Court then ordered an extension of the receipt deadline for absentee ballots<\/a>. The GOP challenged this extension in federal court, arguing that Pennsylvania\u2019s Supreme Court was usurping the state legislature\u2019s authority by extending the mail ballot deadline.<\/p>\n

Upon appeal, the U.S. Supreme Court twice declined<\/a> to halt the counting of these late-arriving ballots in Pennsylvania. But it did order that the ballots in question be segregated for a possible post-election challenge<\/a>.<\/p>\n

It is generally accepted that federal judges should defer to a state court\u2019s interpretation of its own state law<\/a>. But in separate opinions written on behalf of four conservative justices<\/a>, Justices Brett Kavanaugh and Neil Gorsuch used Rhenquist\u2019s opinion on Bush v. Gore to argue that state courts cannot usurp the role of state legislatures.<\/p>\n

In effect, these four justices believe Pennsylvania\u2019s top court had no grounds to extend the voting deadline. Should the Supreme Court hear this case again, Justice Amy Coney Barrett \u2013 the conservative jurist who recently replaced the progressive Justice Ruth Bader Ginsburg<\/a> \u2013 could become the crucial fifth vote necessary to overturn the Pennsylvania decision.<\/p>\n

[The Conversation\u2019s Politics + Society editors pick need-to-know stories.<\/em> Sign up for Politics Weekly<\/a>.]<\/p>\n

Court victory unlikely<\/h2>\n

That ruling would invalidate all affected Pennsylvania votes, as well as votes anywhere else in the country where courts or administrators changed election rules to make them more flexible. That\u2019s thousands upon thousands of votes, potentially enough to change the election\u2019s outcome.<\/p>\n

That outcome could be catastrophic for public confidence in both the Supreme Court and the American electoral process.<\/p>\n

These lawsuits could theoretically stop the election from being certified by the Electoral College per the normal procedure<\/a>. But more likely, if the suits had any traction, they would be resolved quickly to meet the Electoral College\u2019s Dec. 12 deadline.<\/p>\n

This scenario looks increasingly less likely. After winning Wisconsin and Michigan, Joe Biden has a number of credible paths to the necessary 270 Electoral College votes without Pennsylvania. If that happens, a Supreme Court ruling there wouldn\u2019t change the outcome of the 2020 election \u2013 though it could set an important precedent for later elections.<\/p>\n

If there is a Trump loss that doesn\u2019t hinge on Pennsylvania, the Supreme Court may also decline to hear his case. As a rule, the court is reluctant to decide issues unless it has to.<\/p>\n

More Trump legal challenges in North Carolina, Georgia<\/a> and Michigan are involving the courts in this election. But this litigation won\u2019t be able to reverse a decisive, multi-state Electoral College win<\/a>.\"The<\/p>\n

Steven Mulroy<\/a>, Law Professor in Constitutional Law, Criminal Law, Election Law, University of Memphis<\/a><\/em><\/p>\n

This article is republished from The Conversation<\/a> under a Creative Commons license. Read the original article<\/a>.<\/em><\/p>\n","protected":false},"excerpt":{"rendered":"

The Trump campaign has filed two lawsuits in federal court over ballot counting and voting deadlines in Pennsylvania, threatening to …<\/p>\n","protected":false},"author":44,"featured_media":273617,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[16,17],"tags":[],"class_list":["post-274349","post","type-post","status-publish","format-standard","has-post-thumbnail","category-news","category-news-w","mauthors-steven-mulroy-university-of-memphis","mauthors-the-conversation"],"_links":{"self":[{"href":"https:\/\/canadianinquirer.net\/v1\/wp-json\/wp\/v2\/posts\/274349","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/canadianinquirer.net\/v1\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/canadianinquirer.net\/v1\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/canadianinquirer.net\/v1\/wp-json\/wp\/v2\/users\/44"}],"replies":[{"embeddable":true,"href":"https:\/\/canadianinquirer.net\/v1\/wp-json\/wp\/v2\/comments?post=274349"}],"version-history":[{"count":1,"href":"https:\/\/canadianinquirer.net\/v1\/wp-json\/wp\/v2\/posts\/274349\/revisions"}],"predecessor-version":[{"id":274350,"href":"https:\/\/canadianinquirer.net\/v1\/wp-json\/wp\/v2\/posts\/274349\/revisions\/274350"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/canadianinquirer.net\/v1\/wp-json\/wp\/v2\/media\/273617"}],"wp:attachment":[{"href":"https:\/\/canadianinquirer.net\/v1\/wp-json\/wp\/v2\/media?parent=274349"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/canadianinquirer.net\/v1\/wp-json\/wp\/v2\/categories?post=274349"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/canadianinquirer.net\/v1\/wp-json\/wp\/v2\/tags?post=274349"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}