President Donald Trump’s reelection campaign is asking the U.S. Supreme Court to step in and overturn several decisions the Pennsylvania Supreme Court made regarding the 2020 election, saying that the court overstepped its bounds and that “the outcome of the election for the Presidency of the United States hangs in the balance.”
But even in the unlikely event the new challenge is successful and the court agrees to overturn President-elect Joe Biden’s victory in Pennsylvania, it would not change his Electoral College win. Biden amassed 306 electoral votes, the same as Trump four years ago — 36 more votes than the 270 needed to win. Pennsylvania has 20 votes.
What the challenge would do, if successful, is defy the will of the Pennsylvania voters who cast ballots in the Nov. 3 election under the rules in place at the time. Specifically, the campaign said in its filing, it would throw out 110,000 votes that it says are invalid because the Pennsylvania Supreme Court inappropriately changed election rules.
A lawyer representing the campaign said Sunday it had filed a cert petition and a motion to expedite, asking the U.S. Supreme Court to fast-track the case because of the impending Jan. 6 meeting of Congress to receive the Electoral College results and the Jan. 20 inauguration.
The challenge is the latest in a series of increasingly long-shot attempts to overturn the election, which Trump lost in Pennsylvania by more than 80,000 votes. The latest attempt, like the others, doesn’t center on any specific claims of voter fraud in Pennsylvania, despite Trump’s repeated use of baseless conspiracy theories to attack the election.
Instead, it challenges three Pennsylvania Supreme Court decisions on mail ballots and says the state court overstepped its constitutional role. Those opinions, which resolved multiple cases, prohibited counties from comparing mail ballot signatures to those on file; said campaigns and political parties can’t challenge ballots as they are being processed and counted; allowed limitations on observers to the vote count in Philadelphia; and allowed ballots to count even if voters had forgotten to fill out the address or date on the envelope.
In making those decisions, the campaign argues, the Pennsylvania Supreme Court violated the Constitution by taking the state legislature’s power to determine how federal elections are run, similar to an existing argument Pennsylvania Republicans are making in a separate set of challenges. The campaign also says the state court violated the Constitution’s due process clause and equal protection guarantees.
“Collectively, these three decisions resulted in counting approximately 2.6 million mail ballots in violation of the law as enacted by the Pennsylvania Legislature,” reads the petition for a writ of certiorari, the document which asks the Supreme Court to take up the case. If the state Supreme Court erred, the campaign said, that would mean “over 110,000 invalid ballots were illegally counted — more than enough to have affected the outcome of the election, where the margin between the two principal candidates for President currently stands at 80,558.”
Federal courts have consistently protected ballots cast by voters relying in good faith on the election rules that were in place at the time, even if those rules are later deemed unconstitutional.
A spokesperson for the Pennsylvania Department of State, which as a policy doesn’t comment on active litigation, didn’t respond to an email for comment Sunday.
In its filing, the campaign urges the Supreme Court to take up the challenge “to put the country at ease, to the extent possible in these tumultuous times,” painting a dark portrait of a divided nation in which nearly half the country questions the legitimacy of the election, and raising the specter of chaos on the horizon.
“Indeed, the intense national and worldwide attention on the 2020 presidential election only foreshadows the disruption that may well follow if the uncertainty and unfairness shrouding this election are allowed to persist,” reads the motion to fast-track the challenge.
It is Trump and his allies who have spent months fueling the uncertainty around the election and baselessly questioning the results instead of accepting Biden’s victory.
The filings don’t acknowledge that Trump began attacking the election long before a single vote was cast; promotes outlandish conspiracy theories; provides no real evidence of his claims of fraud; has lost dozens of lawsuits across the country, rejected by judges across the ideological spectrum; and fueled the very erosion of public faith that the campaign now points to as a concern.
Instead, they invoke the Civil War election of 1860 and list a series of data points that don’t prove malfeasance or even irregularity in the results.
“A large percentage of the American people know or at least strongly believe that something is deeply amiss,” the cert petition reads.
The Trump campaign asserts that even though the vote has already been certified and the Electoral College has already met, the court can still intervene because a separate group of Republican electors also met to provide dueling electoral votes for Congress to choose from. Or the Republican-controlled legislature could appoint its own set of electors, the campaign argues.
And even if it’s too late to change this election, Trump can still run again: “The legal issues presented by this petition, namely, whether the alteration of state election laws by nonlegislative officials in the states is unconstitutional, will likely recur in future elections — including in the presidential election in 2024, in which Petitioner is constitutionally eligible to run.”
The campaign is represented by John C. Eastman, a law professor at Chapman University who wrote a controversial Newsweek op-ed questioning Kamala Harris’ eligibility for the vice presidency, and Bruce S. Marks, the Republican former state senator from Philadelphia who appeared to lose his election in 1993 before a federal judge declared him the winner and found his opponent had engaged in absentee-ballot fraud.