Thread by @robertltsai

So this is Trump’s final Hail Mary: an assault on mail-in voting by invoking Bush v. Gore. But this would bring down the entire election in PA. I also see no limiting principle to prevent such a precedent from also invalidating mail-in voting systems in other states.

https://twitter.com/carriesheffield/status/1325926306371039233

Another problem with this radical reading of Bush v. Gore is that it uses the idea of equality to dismantle a system of voting created in advance by the state, rather than to stop a state official from changing recount standards after people have voted.

In any event, the theory of unequal or unfair treatment falls apart when you think about it. They argue that mail-in ballots are “devaluing in-person votes,” but it does no such thing. Each person had an equal opportunity formally to decide how to cast one vote.

Another thought: If the design or counting of mail-in ballots violated equality, wouldn’t it also do so for every other race using the same system?

Many were rightly alarmed that 4 members of SCOTUS (before ACB’s ascendance) were open to invalidating the PA Sup. Ct’s rather modest extension of the deadline for mail-in ballots to arrive. But embracing Trump’s wholesale assault on mail-in voting would truly be astonishing.

It seems to me a federal district judge can and should dispose of any design-challenges on their face given the extraordinary nature of the legal theory and the intrusive quality of any relief that would be required. Here they want an injunction to stop certification.

Strewn throughout the complaint are allegations concerning the handling of certain ballots that were defective. The problem is that these allegations, even if true, wouldn’t rise to the level of a systematic effort to deprive voters of the franchise.

I’m not going to go through every allegation but they regurgitate many things they’ve alleged in other cases or in the news.

The right answer, I think, is a quick TRO hearing, a district judge giving them an audience and refusing to grant a TRO to stop the certification process. The Third Circuit should affirm, and SCOTUS deny cert.

I was a law clerk when Al Sharpton ran for mayor of NYC. He brought an EPC challenge to the primary results. My judge gave him a hearing, denied the TRO, and things wrapped up fairly quickly after that. And we thought intervening there would be far-reaching!

Granted that was in 1997, so in the pre-Bush v. Gore world. But as awful as that decision was, this Trump lawsuit based on this theory would not only overturn an election; it would also destroy states’ rights.

I don’t want to give any more airtime to these allegations. Trump and his allies will use the lawsuit as a vehicle to drum up more discontent, which is unnerving. My belief is that federal judges will understand what it would mean to throw the results into real doubt—and won’t.