Twenty years ago next month, the Supreme Court handed down its decision in Bush v. Gore, effectively ensuring that George W. Bush would win Florida’s electoral votes and thus the presidency. President Donald Trump is hoping for a similar High Court intervention in 2020—this time in Pennsylvania rather than Florida.
The president has filed a federal lawsuit (Trump v. Boockvar) citing Bush v. Gore to block Pennsylvania from certifying its election results. The outcome of this litigation is critical to Trump’s strategy because without Pennsylvania’s electoral votes Trump has no viable path to reelection. Though Boockvar bears superficial similarities to Bush v. Gore, key differences make a Trump win unlikely.
Like Bush v. Gore, Trump’s Pennsylvania suit is grounded on the theory that disparate procedures for counting votes violate the Fourteenth Amendment’s guarantee of equal protection under the law. The complaint accuses Pennsylvania officials of creating “an illegal two-tiered voting system, in which those voting in person were subject to different procedures than those casting absentee or mail-in ballots.
But disparate treatment offends the Equal Protection Clause only when those being treated differently are “similarly situated.” Bush v. Gore involved a statewide recount in which all voters were similarly situated: they had all cast (or attempted to cast) a ballot, and the case turned on the criteria used to count their votes. In the now-infamous Florida recount, some counties reviewed only “undervotes” (in which the counting machines recorded no vote) while others reviewed all ballots. And counties applied inconsistent tests to infer voter intent from the imperfectly punched ballot-punch cards. There was evidence that voters in Palm Beach County, for example, were less likely to have their votes counted than voters in Broward County.
In the Pennsylvania case, the state will likely be able to establish that absentee and in-person voters are not similarly situated and that differing procedures are justified by the inherent differences between the two types of voters. Further weakening the president’s case, the complaint fails to allege any concrete fraud arising from the two-tiered system. Rather, Trump alleges that inconsistent procedures “created an environment” that “encourages” fraud or vote tampering.
The complaint comes closer to Bush v. Gore when it alleges that, even within the “two-tiered system,” Pennsylvania failed to create uniform standards for handling absentee and mail-in ballots. In Bush v. Gore, the majority held that Florida voters were denied equal protection because votes were being canvassed under different standards in different counties.
The Pennsylvania lawsuit, however, does not identify a single instance in which a citizen’s vote was not counted due to the allegedly unfair local procedures. Rather, the complaint asserts that officials in certain, largely Democratic, counties afforded voters unauthorized opportunities to remedy defective mail-in ballots, thus “diluting” the votes of Trump supporters in other counties—a theory rejected by a federal court in a pre-election Trump lawsuit.
Distinct election procedures at the county level do not necessarily violate the principles of equal protection; indeed, in Bush v. Gore the majority emphasized that their decision did not deprive “local entities, in the exercise of their expertise [from developing] different systems for implementing elections.” The decisive factor in Bush v. Gore was that the Florida Supreme Court had ordered a recount that was to be conducted under uniform statewide standards.
The Trump complaint originally also asserted claims based on the allegation that Republican poll watchers were denied “meaningful access” to observe the canvassing of mail-in ballots. Those claims, however, have since been withdrawn.
To be sure, Trump’s concerns about Pennsylvania are not unfounded. In a separate lawsuit, the campaign succeeded in disqualifying a number of mail-in votes on the basis that state officials had unlawfully granted mail-in voters three additional days to verify their identities. The Pennsylvania complaint cites numerous procedural irregularities worthy of investigation and accurately recites prior incidents of voter fraud in the Commonwealth, including a recently unsealed indictment against a Philadelphia elections judge charged with ballot stuffing.
But to persuade a court to block Pennsylvania’s certification of the election, the president will need to produce evidence of unequal treatment on a scale that could affect the outcome. The Court’s Bush majority was careful to limit the scope of their decision “to the present circumstances.” Those circumstances included not only disparate treatment but also an election in which only hundreds of votes separated the candidates, rather than the 60,000-vote gulf between Trump and Biden in Pennsylvania.
In Bush v. Gore, the Supreme Court employed a novel reading of the Equal Protection Clause to bring finality to a chaotic recount that was running up against Florida’s deadline for appointing electors. The context of Trump v. Boockvar is different, and the result will probably be different, too.
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