Trump’s Pennsylvania lawsuits invoke Bush v. Gore – but the Supreme Court probably won’t decide the 2020 election

10 mins read

Steven Mulroy, University of Memphis

The Trump marketing campaign has filed two lawsuits in federal court over ballot counting and voting deadlines in Pennsylvania, threatening to take the election to the Supreme Court. Both consciously echo the two primary authorized theories of Bush v. Gore, the notorious Supreme Court case that determined the contested 2000 presidential election.

But this race isn’t more likely to be determined by the Supreme Court.

There are a number of causes, sitting at the intersection of regulation and politics, why the ghosts of Florida previous received’t rise once more in Pennsylvania. As a law professor who’s authored a book on election reform, I fee success in Trump’s efforts to wrench again Biden’s lead by means of litigation as an actual lengthy shot, although not out of the query.

Equal safety

Trump’s newest Pennsylvania lawsuit attracts on the “equal protection” argument cited in Bush v. Gore.

In the 2000 case, Democratic candidate Al Gore challenged Florida’s first machine-generated vote rely when hundreds of voters had issues marking their punch card ballots. The Florida Supreme Court allowed a statewide recount to make sure that all authorized votes have been counted.

People look closely at a Florida ballot in 2000
Election officers assessment a poll with observing attorneys in Florida, Nov. 22, 2000. AP Photo/Victor Caivano

But the requirements for counting the notorious “hanging chads” – incomplete marks on these punch card ballots – various 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. The courtroom shut down the recount and declared Bush, the Republican candidate, the winner in Florida – and due to this fact of the 2000 election.

Republicans try an analogous play in Pennsylvania with a authorized declare filed on Election Day.

In some Pennsylvania counties, election officers have been contacting voters whose mail-in ballots have been disqualified for technical reasons to verify their signature or fill in lacking figuring out info, validating their poll so it’s going to rely. Since just some Pennsylvania counties have been doing this “ballot curing” course of, the Trump camp argues, the state’s lack of uniformity violates the Equal Protection Clause.

No matter what the decrease courts rule, the plaintiffs will doubtless take this case, which makes a federal constitutional declare, to the Supreme Court.

The courtroom would possibly decline to take it for any variety of causes. One is that in Bush v. Gore, the justices truly cautioned that their choice was distinctive to Florida’s 2000 vote rely and will not be given much weight as precedent.

State legislatures

Trump’s different Pennsylvania authorized problem, which was filed in state court back in September, can also be rooted in Bush v. Gore. It invokes an typically neglected concurring opinion in that case, which superior an alternate concept for handing Bush a win.

The opinion, written by Chief Justice William Rehnquist as a complement to the majority choice, is rooted in the “plenary authority” of state legislatures to allocate Electoral College votes. Under Article II of the Constitution, state legislatures have whole energy to decide how their Electoral College votes needs to be awarded – they don’t even have to carry a presidential election in the event that they don’t wish to. Whatever their course of, Rehnquist wrote, it should be respected; no courtroom, state or federal, ought to disturb it.

That “plenary authority” is uncontroversial. But Rehnquist’s concurrence is. In it, he argued that by ordering an emergency recount whose timing and deadlines deviated from the legislatively offered election guidelines, Florida’s Supreme Court was usurping the Florida legislature’s plenary authority.

A courtroom scene from 2000
A witness testifies in considered one of the Florida circumstances that led to the U.S. Supreme Court’s Bush v. Gore ruling in 2000. Craig Litten/AFP via Getty Images

This “Article II theory” is taken into account reasonably fringe – but Republicans are advancing it in Pennsylvania.

In September, the Pennsylvania courts agreed with the Democratic Party that as a consequence of COVID-19-related issues, mail-in ballots acquired as much as three days after the election could still be counted, even when the put up workplace uncared for to affix a legible postmark. In October, the state’s Supreme Court then ordered an extension of the receipt deadline for absentee ballots. The GOP challenged this extension in federal courtroom, arguing that Pennsylvania’s Supreme Court was usurping the state legislature’s authority by extending the mail poll deadline.

Upon enchantment, the U.S. Supreme Court twice declined to halt the counting of those late-arriving ballots in Pennsylvania. But it did order that the ballots in query be segregated for a possible post-election challenge.

It is mostly accepted that federal judges ought to defer to a state court’s interpretation of its own state law. But in separate opinions written on behalf of four conservative justices, Justices Brett Kavanaugh and Neil Gorsuch used Rhenquist’s opinion on Bush v. Gore to argue that state courts can’t usurp the position of state legislatures.

In impact, these 4 justices consider Pennsylvania’s high courtroom had no grounds to increase the voting deadline. Should the Supreme Court hear this case once more, Justice Amy Coney Barrett – the conservative jurist who recently replaced the progressive Justice Ruth Bader Ginsburg – may develop into the essential fifth vote essential to overturn the Pennsylvania choice.

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Court victory unlikely

That ruling would invalidate all affected Pennsylvania votes, in addition to votes wherever else in the nation the place courts or directors modified election guidelines to make them extra versatile. That’s hundreds upon hundreds of votes, probably sufficient to alter the election’s end result.

That end result may very well be catastrophic for public confidence in each the Supreme Court and the American electoral course of.

These lawsuits may theoretically cease the election from being certified by the Electoral College per the normal procedure. But extra doubtless, if the fits had any traction, they might be resolved shortly to satisfy the Electoral College’s Dec. 12 deadline.

People in Pennsylvania process votes in 2020
Pennsylvania election staff course of ballots, Nov. 4, 2020. AP Photo/Matt Slocum

This state of affairs seems to be more and more much less doubtless. After profitable Wisconsin and Michigan, Joe Biden has a lot of credible paths to the essential 270 Electoral College votes with out Pennsylvania. If that occurs, a Supreme Court ruling there wouldn’t change the end result of the 2020 election – although it may set an vital precedent for later elections.

If there’s a Trump loss that doesn’t hinge on Pennsylvania, the Supreme Court might also decline to listen to his case. As a rule, the courtroom is reluctant to decide points until it has to.

More Trump authorized challenges in North Carolina, Georgia and Michigan are involving the courts on this election. But this litigation won’t be able to reverse a decisive, multi-state Electoral College win.

Steven Mulroy, Law Professor in Constitutional Law, Criminal Law, Election Law, University of Memphis

This article is republished from The Conversation beneath a Creative Commons license. Read the original article.


Charlene is a Bay Area journalist who hails from the small community of Fresno. Drawing from her experience writing for her college paper, Charlene continues to advocate for free press and local journalism. She also volunteers in all the beach cleanups she can because she loves the water.