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crazyguy's avatar

Do you see significant differences between the equal protection clause as applied in the Bush v Gore case in 2000 and the Pennsylvania case ruled on today?

Asked by crazyguy (1439points) 2 days ago

Today Federal Judge Matthew Brann turned down the Trump campaign’s lawsuit in Pennsylvania. This decision will probably provide a path to the Supreme Court.

The basis of the lawsuit was the Equal Protection Clause which is part of Amendment 14 to the US Constitution. The Equal Protection Clause (henceforth referred to as EP) gained notoriety in 2000 when it was the basis for the US Supreme Court decision to stop the Florida recount on the basis that different counties had different procedures for the recount.

The Pennsylvania case was based on very similar grounds. The case relates to curing ballots that are defective. ”(T)he state left it to counties to decide how aggressive to be in trying to contact voters to help them fix their ballots — or “cure” them, in election jargon. And some counties aren’t planning to follow the state’s instructions. Officials in Montgomery and Centre Counties, for example, won’t cancel flawed ballots because they want voters to be able to fix them. Allegheny County mails flawed ballots right back to voters, never canceling them nor marking them in the system at all.”

The Trump campaign filed a lawsuit alleging unequal treatment of voters in different counties. The Judge’s decision relies partly on “standing” of the plaintiffs, and partly on the merits. You can read the decision here:
https://www.documentcloud.org/documents/7331957-Judge-Brann-Decision.html

I am not a lawyer and am appealing to lawyers for help. On the surface, I have a hard time understanding why EP does not apply here. Can you help?

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12 Answers

ragingloli's avatar

It starts on page 34.
The claim that the non-uniform application of ballot curing was an EP violation as in Bush v Gore, was rejected by the judge, because the case explicitly stated that it was not about local entities having differences in their execution of elections, but about a court ordering a recount not offering guidance to ensure even rudimentary standards of equal treatment.
The mail by secretary Boockvar was not a court order, nor was it alleged that different guidance was given to different counties, and the fact that some counties chose to not implement the recommendation, or implement it differently, was judged to not be an EP violation, because that was explicitly stated to not be the matter at hand in Bush v Gore.

LostInParadise's avatar

In the Bush v Gore case the Supreme Court said that its decision should not count as a precedent. They did not allow Florida to recount the votes because of time constraints. It is also significant that the vote difference in Florida was only only a few hundred votes whereas Biden’s lead over Trump in Pennsylvania is in the tens of thousands. There is no chance that the ballots in question could possibly reverse the state vote.

crazyguy's avatar

@ragingloli Do you think there is enough looseness in the Judge Brann decision versus Bush, that an appeal is not only possible, but highly likely?

@LostInParadise I did not realize that. However, whether the decision says that or not, there has been a lot of disagreement about whether it is precedent or not. For instance see
https://www.propublica.org/article/why-bush-v-gore-still-matters

You also say: “There is no chance that the ballots in question could possibly reverse the state vote.” I do not know that. Do you?

ragingloli's avatar

The campaign will appeal either way, regardless of chances of success, because they are banking on a biased supreme court finding in their favour.
But reading the judge’s ruling opinion, it does not sound like a narrow disagreement in the interpretation of the case Bush v Gore, but rather a finding that the campaign grossly misrepresented that case in order to support their argument. The same goes for the cases they cited to support the claim that the campaign had standing in this lawsuit.
So I think that any appeal has a very low chance of success.

Strauss's avatar

I agree with @ragingloli for the reasons stated. I also think the case will become moot by the time it shows up on the SCOTUS docket.

crazyguy's avatar

@ragingloli I believe the campaign announced today that they will appeal. I do not know if they have to be heard in the Court of Appeals before they file for certiorari. I think Trump will get a fair hearing before the Supreme Court.

To me the most amazing thing was Biden’s confidence on Election Night. It was almost like he knew what was coming in the next few days.

crazyguy's avatar

@Strauss I do not think the case will be moot. I believe the appeals process will be rushed.

ragingloli's avatar

“To me the most amazing thing was Biden’s confidence on Election Night. It was almost like he knew what was coming in the next few days.”
That is just political showmanship. Anyone would present themselves as certain of victory.

crazyguy's avatar

@ragingloli You are correct – anyone would. I am probably reading more into it than was there.

Strauss's avatar

@crazyguy Perhaps the process will be rushed, but from what I’ve seen and heard from various sources, as of today, 11/23/2020, Pennsylvania is all set to certify Biden as President-Elect. That would certainly make the case moot.

crazyguy's avatar

@Strauss I am not a lawyer; I do not know whether certification of election results makes any lawsuit moot. Would you know the impact of certification on future lawsuits?

Strauss's avatar

I’m not a lawyer either. But there’s an interesting article in Law and Crime that suggests the Supreme Court has no interest in hearing this case. IMHO, that plus the certification by Michigan and most likely by Pennsylvania are the final nails in the coffin of the Trump Campaign’s attempt to win the election in the Supreme Court. It’s time to concede and let the transition begin.

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