Thread by @gabrielmalor

This new lawsuit is against the PA secretary of the commonwealth and four election boards in heavily-Democratic counties.

It raises due process, equal protection, and electors clause claims and is premised on two specific complaints about procedures in PA.

The Trump camp. alleges that:

(1) Trump camp. observers were prevented from meaningfully observing pre-canvassing, counting, and mail-in counting.

(2) The Democratic election boards allowed voters to cure bad ballots prior to election day, whereas other counties did not.

There is some pre-buttal in here about what "meaningfully observe" means and its importance to election integrity, since even the Trump campaign is grudgingly admitting that GOP observers were actually present in the room.

The second underlying complaint about election procedures is essentially about fairness, and it's the first time I'm hearing about it. (They will have to prove up these allegations.)

But they say that election officials in the named Dem. counties did more to cure bad ballots.

The theory is that (1) election officials should not have tried to cure bad ballots received before Election Day; and (2) it is unfair to voters from other counties that didn't get a chance to cure so *all of the cured ballots should be thrown out.*

I think it highly unlikely this second theory will succeed. The courts are not going to throw out what even the Trump campaign seems to be admitting are accurate ballots reflecting the true wishes of the voter who cast it just because not all voters could have cured bad ballots.

"I have here a stack of ballots that you think can't be counted because they're too accurate!??"

Just don't thinik that's gonna fly. This second theory, btw, explicitly does not rely on the theory that fraud was committed. The campaign concedes that these are accurate ballots.

The relief sought by the Trump campaign in this latest lawsuit is quite simply that Pennsylvania not get a say in this election.

That would deprive Biden of 20 electoral votes. To win, Trump would still need to pick off at least one and possibly two other states.

Again, I think it highly unlikely that the courts are going to say "you know what, Pennsylvania voters you don't count this time around because some of your election boards were too diligent in securing accurate votes."

For one thing, on a per-voter level, the fairness objection simply doesn't exist. An accurately counted ballot is an accurately counted ballot regardless of whether it comes in a heavily-D county or a heavily-R county.

Only when you back out to the per-party level does it start to matter where accurate ballots are coming from.

But the parties do not have a right to have ballots for their candidate cast on an equal basis. For starters, there's no way to know who these cured votes went to.

Right? The "diluting effect of illegal ballots" doesn't even come into play when the claim necessarily is that these cured ballots are actually, concededly correct.

Turning for a second back to the first underlying dispute over election procedure—that GOP observers were kept too far from canvassers to meaningfully observe—a couple notes.

First, there is no allegation here that Dem observers were allowed closer than GOP observers.

Second, the remedy sought (throw out PA's electoral votes) doesn't fix the procedural error here.

The remedy to "we didn't always get to observe" is "have a recount we get to observe" not "PA voters get no say in this election because of a isolated incidents in four counties."

To spin back to this tweet, I am seeing argument about Bush v. Gore, but it's important to remember that the equal protection issue there was treating ballots unequally when we don't know the will of the voter.

The will of the voter is not at issue in PA's cured ballots.

https://twitter.com/gabrielmalor/status/1325938931716796417

But there's an even more fundamental problem with the Bush v. Gore argument. According to the complaint itself, the Dem sec. of commonwealth authorized all counties to use a cure procedure for defective ballots.

It's hard to see how the decision of some counties not to cure ballots in accordance with that direction, means the cured ballots should get thrown out because some counties chose to disregard the procedure.

That would essentially give obstinate counties a veto over other counties any time vote procedures differed, which cannot be the correct outcome. Otherwise, GOP counties could just spoil the votes in Democratic states at any time by refusing to use the same counting standards.

Right, and the fact that they ran out of time meant that it was over.

At the moment, we still have a lot of time before the ultimate certification has to happen.

IOW, there is still time for application of remedies.

https://twitter.com/DaveinTexas/status/1325964883201028097

I also want to clear something up about fraud. The cured ballot issue does not involve claims of fraud. The meaningful observer issue does, potentially, involve the possibility of fraud. The Trump campaign's point is that they couldn't tell because they couldn't observe.

And I might add that even though the underlying causes of action do not rely on claims of fraud, the complaint, in its factual recitations, does suggest that some fraud could have occurred. It just doesn't specify the evidence the campaign could bring to prove it.

Anyway, to sum up. This is not a frivolous lawsuit (as some legal commentators immediately claimed on Twitter).

But it's hard to see how even if the campaign could prove up these claims that they've asked for appropriate remedies.