As arguments about voter fraud have escalated across the country, it’s time to recognize that despite what an unmitigated disaster widespread expansion of absentee balloting has been, concerns about its abuse aren’t the most important argument in the ongoing fight over the legitimacy of this election. Sure, the media and Big Tech’s widespread white-washing and censoring of very real voter fraud concerns are damaging to the social fabric in existential ways, just as ignoring norms (and in some cases laws) requiring transparency destroys public trust and confidence in the outcome.
The Pennsylvania lawsuit isn’t yet proof that election-altering fraud occurred, although it does present compelling evidence that if proved shatters the media narrative on election security. A closer look at the allegations of direct fraud weighed against the likelihood of proving that enough occurred to alter the outcome — on a shortened timeline — reveals a daunting task for the president’s legal team.
President Trump’s lawyers, however, aren’t making the same argument as your uncle on Facebook; they’re playing for keeps. Some Republicans have been content to publicly call for the “process to play out” while privately predicting losses or maybe a few favorable rulings on some esoteric technicalities. But the president is not tired of winning yet.
Shortly after the filing, Jenna Ellis, a senior legal adviser to the Trump campaign, put it succinctly: “Pennsylvania is irredeemably compromised.”
Conclusion: Pennsylvania is irredeemably compromised.
Team Trump asking for an order prohibiting certification of results.
— Jenna Ellis (@JennaEllisEsq) November 9, 2020
The thrust of their legal argument doesn’t hinge on the numbers of fraudulent ballots cast, but on the inconsistent and illegal application of Pennsylvania election law, which dilutes legally cast votes — so-called disparate treatment, from which the U.S. Constitution is supposed to protect us.
The other key legal argument is that those changes in the election law, which were implemented by an unelected appointee of Pennsylvania’s executive branch, namely Secretary of the Commonwealth Kathy Boockvar, were an impermissible usurpation of the legislature’s prerogative even if Pennsylvania’s judicial branch approved them.
Bush v. Gore Already Wrestled with These Concerns
Underlying the president’s legal argument is the recognition that the Pennsylvania legislature implemented an imperfect regime that rationally valued security of the election as more important than avoiding disenfranchising any voters. Even amid a pandemic, the Pennsylvania legislature understood that their expansion of ballot-by-mail increased risks to election security, and thus sought to mitigate that as best they could. It was partisan state courts that unilaterally overrode those determinations in the middle of a presidential campaign in an unconstitutional way.
The discussion about what types of fraud, and how much, is important because it goes to the very heart of election integrity, and our system cannot stand without trust in the outcome. That argument, however, won’t decide the Pennsylvania case from a legal standpoint. It will come down to whether a ministerial appointee of Pennsylvania’s executive branch can work with Pennsylvania’s judicial branch to subvert the expressed will of the legislature, and hastily put in place an election process wherein citizens who chose to vote differently had their votes disparately treated.
Recall that in 2000, the legal argument that eventually carried the day was equal-protection grounds; by implementing different methods for recounts and different scrutiny for different counties, voters were receiving unequal treatment. The Supreme Court held 7-2 that “Upon due consideration of the difficulties identified to this point, it is obvious that the recount cannot be conducted in compliance with the requirements of equal protection and due process without substantial additional work.”
Twenty years is a long time as far as the public attention span goes, and most have allowed the “selected not elected” mantra to pervade our consciousness. Contra the prevailing narrative, however, Justices William Rehnquist, Antonin Scalia, and Clarence Thomas framed their decision as one of judicial restraint that saw a key part of the court’s role was in protecting the Florida legislature from impermissible interference by the Florida courts:
In most cases, comity and respect for federalism compel us to defer to the decisions of state courts on issues of state law. That practice reflects our understanding that the decisions of state courts are definitive pronouncements of the will of the States as sovereigns. Of course, in ordinary cases, the distribution of powers among the branches of a State’s government raises no questions of federal constitutional law, subject to the requirement that the government be republican in character. But there are a few exceptional cases in which the Constitution imposes a duty or confers a power on a particular branch of a State’s government. This is one of them. … Thus, the text of the election law itself, and not just its interpretation by the courts of the States, takes on independent significance.
A significant departure from the legislative scheme for appointing Presidential electors presents a federal constitutional question.
If we are to respect the legislature’s Article II powers, therefore, we must ensure that postelection state-court actions do not frustrate the legislative desire to attain the ‘safe harbor’ provided by §5. (Rehnquist concurring, but writing separately; Citations and dicta omitted)
Admittedly, this “Article II view” was a more expansive view on why the ongoing Florida recount was suspect than the Supreme Court ultimately held, but clearly, at least three justices believed that the courts — even state courts, which usually receive great deference to interpreting state law — don’t have a right to tweak the express will of the state legislature about presidential electors.
To be sure, the equal-protection claims also present differently, so they aren’t a slam-dunk here, and the Rehnquist concurrence isn’t controlling precedent (two of the three justices who signed on to the opinion are no longer on the court), so it might not carry the day.
Three of the young lawyers on the Bush team advocating this view of the law in 2000 have received pretty notable promotions since that time, however, and three other guys likely to have a say have signaled their belief in exactly this interpretation, stating recently, “The provisions of the Federal Constitution conferring on state legislatures, not state courts, the authority to make rules governing federal elections would be meaningless if a state court could override the rules adopted by the legislature simply by claiming that a state constitutional provision gave the courts the authority to make whatever rules it thought appropriate for the conduct of a fair election.”
It’s anyone’s guess how the Supreme Court would rule if it gets to that point, but when three current justices (Thomas, Samuel Alito, and Neil Gorsuch) have signaled they’re sympathetic to the basic legal argument, and three other justices (John Roberts, Brett Kavanaugh, and Amy Coney Barrett) were part of the team that advanced very similar legal arguments in Bush v. Gore, the president and his team must like their chances.
The Changes Disproportionately Helped Biden
Pundits and some Trump supporters have engaged in navel-gazing and resigned themselves to the line of reasoning that “maybe Trump shouldn’t have down-talked absentee voting.” We know in addition to increased risk of fraud, however, voters who cast absentee ballots have historically had a significantly greater likelihood of being disenfranchised than in-person voters.
For Trump to push his supporters to vote in ways that were more likely to count isn’t irrational. It instead raises the question of why former Vice President Joe Biden wasn’t concerned with his voters being disenfranchised if they voted absentee, given the historical risks.
Both the potential for fraud and increased probability of disenfranchising voters sound intuitively like things we should fix, but the Pennsylvania legislature didn’t. They saw fit to keep the bar high to offset the risk of fraud and associated effects to public confidence in the election that unrestricted mail balloting would cause.
There’s a rational basis for that, and the entire saga has played out nationally. With the non-legislative changes, absentee voters were significantly less likely to be disenfranchised than before — indeed, Boockvar’s unilateral changes in Pennsylvania removed nearly every barrier the duly elected state legislature had put in place.
This created an environment where the constitutional guarantee of one person, one vote was tilted significantly in the direction of a voting modality (mail balloting versus in-person balloting). Not only was this ripe for greater abuse, but that tilting of the playing field disproportionately benefited the voters of one presidential candidate. Making this even more obvious are new revelations that show how the larger Democratic strongholds were equipped to quickly pre-sort potentially invalid ballots, and Democratic operatives were gearing up to capitalize on the eventual changes to the statutory pre-canvass period before Boockvar’s office even announced them.
What if the Supreme Court Invalidates a State’s Election
For conservatives, an intellectual challenge now presents itself: If you were OK with the Supreme Court stopping the Florida recount in 2000, you need to prepare yourself to be comfortable with the same court invalidating the Pennsylvania electors. Indeed, you should want them to, whether or not there was underlying direct fraud sufficient enough to affect the outcome. Alternatively, you should start working on your tortuous rationale for why, on constitutional grounds, what was legitimate in 2000 is not legitimate in 2020.
Whether you’re persuaded by the equal protection reasoning in the Bush v. Gore holding or in the minority’s separate concurrence emphasizing the plenary powers of the Pennsylvania legislature under Article II, Section 1, Clause 2, if the case makes it to the Supreme Court it won’t hinge on some threshold level of fraud that tipped the scales against Trump, nor will it be about the raw power of a conservative court to hand the election to Trump (which will certainly be the media narrative if it gets to that point). It will be, and always has been, about the rule of law.
Where the actual fraud becomes important — an actual measure of it, and whether it delivered an illegitimate win to Biden — is in how the Pennsylvania legislature, and potentially Congress, should react to the Court prohibiting the certification of the November election with respect to presidential electors. There is nothing wrong or abhorrent to our constitutional system if the elected representatives of the citizens of Pennsylvania are required to weigh in and clean this up on behalf of their voters. They need to be prepared to make their case to their voters if the predominant media narrative remains that the fraud wasn’t significant enough to affect the election outcome in Pennsylvania.
Regardless of how the Pennsylvania case gets resolved, it won’t change the overall outcome on its own. The 20 electoral votes wouldn’t be enough to swing the election to Trump if existing media projections for Arizona, Nevada, Georgia, Wisconsin, and Michigan stay in Biden’s column. If any of those changes, whether through ongoing canvassing efforts or other simultaneous legal challenges — such as the president’s filing Wednesday in Michigan making similar constitutional claims — well, Katy, bar the door.
Our way of government is strong enough to endure this. The only way through is through.