The Trump campaign has filed its most sweeping lawsuit yet in an attempt to block certification of the Pennsylvania results that gave Joe Biden the votes he needed to secure the U.S. presidency.
In a legal filing in U.S. District Court in Pennsylvania, the Trump campaign and two voters allege that the state allowed an illegal, “two-tiered” system of voting, in which mail-in ballots received less scrutiny of voter identification than in-person voting.
Most of the dozen or more lawsuits filed so far by Republican lawyers have been quickly tossed out of court. In Michigan, the key evidence that late-arriving ballots were being counted was an anonymously authored sticky note. In Arizona, claims that Republican voters’ Sharpie pens resulted in spoiled ballots were revealed to be false. In a previous case in Pennsylvania, claims that Republican observers were barred from vote-counting stations were undermined when a Republican lawyer admitted in court the party had a “non-zero” number of observers present.
But the new lawsuit, filed late Monday, alleges that the very system of mail-in ballots, as overseen by Pennsylvania election authorities, violates the United States Constitution.
The mail-in ballots are critical because 2.65 million were cast, out of a total of 6.75 million ballots in the state, according to the Trump campaign’s filing. Registered Democrats requested a majority of the mail-in ballots.
“In a rush to count mail ballots and ensure Democrat Joe Biden is elected, Pennsylvania has created an illegal two-tiered voting system for the 2020 General Election, devaluing in-person votes,” the 86-page legal filing says.
The filing says the system violates the Constitution’s equal-protection clause by devaluing in-person votes. At the polls, "citizens were required to sign voter registrations, have those signatures checked against voter rolls, vote in a polling place monitored by statutorily authorized poll observers, and have their votes counted in a transparent and verifiable open and observed manner.” By contrast, the mail-in process “lacked all of the hallmarks of transparency and verifiability that were present for in-person voters.”
Two U.S. law professors told The Globe and Mail that the lawsuit is almost certain to fail.
“There’s no basis for a court stepping in and stopping the certification of the vote in almost any situation, but certainly not without any evidence of mass irregularities that would change the outcome,” Paul Schiff Berman, a law professor at George Washington University in Washington, said.
Claire Finkelstein, director of the Center for Ethics and the Rule of Law at the University of Pennsylvania Carey Law School, said the legal complaint "is better written than some of the typical Trump shlocky complaints you see come out. They’ve got able lawyers doing this and that does make me a little bit nervous.”
On the other hand, she said, “Why would it be unconstitutional? We’ve used absentee ballots for years. It’s up to the states to determine what system they want to use.”
The Trump lawsuit names as defendants Pennsylvania’s Secretary of State, Kathy Boockvar, who is responsible for ensuring the integrity of the electoral process, and the election officials of seven counties. A spokeswoman for the Department of State declined to comment with the case before the court.
The lawsuit describes flawed procedures, alleging that Ms. Boockvar refused to require adequate verification of mail-in voters’ identity, that the review and counting of mail-in ballots was done largely in secret, and that notifying mail-in voters of deficiencies in their ballots (such as forgetting to use the inner secrecy envelope) was done ahead of time so they could “cure” or correct their mistakes.
While some political analysts have said that President Donald Trump’s goal is to delegitimize a Democratic government, Prof. Finkelstein said she believes Mr. Trump still hopes to win, perhaps in part by exerting pressure on Pennsylvania legislators to send a Republican slate of electors to the Electoral College next month. (The state’s Republican leaders have said they oppose such a move.) Ultimately, it is possible the selection of president could fall to the House of Representatives, she said.
In the U.S. system, when no candidate has received a majority of electors, the House of Representatives selects the winner. Each state delegation in the House receives one vote. The last time a U.S. election was settled this way was in 1824.
“I think Trump is just crazy enough to think he might be able to overthrow the results," Prof. Finkelstein said, adding that a letter this week in which Attorney-General William Barr instructed federal attorneys to probe voter fraud is part of the same effort.
Prof. Berman said Mr. Trump is attempting a “coup.” “What we are seeing is a relatively incompetent and unsuccessful effort to stage a coup, and hold on to power, despite the vote." He said that effort is "wildly destructive of American democracy, because it suggests that it is actually permissible to try to overturn what is a clear election result.”
Our Morning Update and Evening Update newsletters are written by Globe editors, giving you a concise summary of the day’s most important headlines. Sign up today.