I received a number of inquiries concerning whether the PA federal court case that was dismissed with prejudice yesterday can or will find its way up to SCOTUS on appeal. This is a long thread, but worth reading in its entirety if you want to fully understand... /1

...what’s going on and why I and other legal minds feel no anxiety over an appeal.

First, let me emphasize that ANY federal court case at the trial court level can be appealed. That will happen here. First, Trump will go to the Third Circuit (where he will lose) and then.../2

... he will appeal it quickly to SCOTUS. For the reasons I will walk through below, he will also lose there.

I want to further emphasize that I share concerns that SCOTUS is partial to the GOP and a Trump administration, in much the way the court was partial... /3

...to Bush in 2000 and delivered a 5-4 opinion that stopped the recount. But this is a very different situation than 2000, and I do not think any court, no matter how biased, will be able to contort itself into delivering Pennsylvania.../4

... for Trump or otherwise invalidating its election.

To understand why, we need to look at the facts of this case and what they are actually alleging.

Two plaintiffs from Lancaster and Fayette, Pennsylvania (two heavily red counties) allege that their mail-in votes.../5

... were canceled and, unlike other voters in other counties, they were not given an opportunity to “cure” the invalidation. The brief history of this is important. In 2019 the GOP-controlled legislature in PA passed a law providing.../6

... for no-excuse-needed mail-in voting for all voters in the state. The rules for how voters had to complete ballots were stricter than most states. There was an infamous “secrecy” envelope, inside of which voters had to put the ballot envelope. People complained.../7

...that this would wind up with a lot of rejected ballots as the process was not very intuitive or normal.

The new mail-in ballot law did not address what rights voters have to any notice that their ballot was defective, or to “cure” a defectively submitted ballot.../8

... after it was rejected by a county elections office (these are called “notice and cure” provisions). The PA Supreme Court in another case in October held that counties were not REQUIRED to adopt any notice and cure provisions.../9

... , but did not address whether any of these provisions were forbidden. On Nov 2, the Secretary of State, Kathy Boockvar, sent an email to the counties encouraging them to provide notice to any voters who submitted defective ballots.../10

... so that they could be cured. Some counties did so, including Philly County. Others, including Lancaster and Fayette, did not.

Plaintiffs sued Boockvar and the State Board of Elections, but curiously only sued counties OTHER than their own, including Allegheny,.../11

... Centre, Chester, Delaware, Montgomery, Northampton, and Philadelphia (all heavily Biden counties).

Okay, so now the legal arguments. The first things Plaintiffs lost on, and this is critical, is called “Standing.” In order to bring.../12

... a case in court, you have to have standing, meaning the right to sue. You have to show you 1) suffered an injury, 2) that the injury is traceable to the named defendants, and 3) that it can be redressed by the court. Here, the court found.../13

... there was injury to the two voters in that their ballots were canceled. But on parts 2) and 3), the case fell apart.

With respect to 2), plaintiffs’ beef was with Lancaster and Fayette counties, and not with the state or the other counties. It wasn’t.../14

... these OTHER counties who stood in the way of plaintiffs’ right to vote. Tellingly, neither of the counties they lived in were even made defendants. None of the named defendants discarded or rejected the plaintiffs’ votes. That was all.../15

... Lancaster and Fayette Counties’ doing. (In my view, some counties were making it harder on purpose for mail-in voters who were actually mostly DEMOCRATS.) Plus, it’s clear Secretary Boockvar was actually encouraging.../16

... counties to adopt notice and cure provisions, as her email to counties made clear. She actually has no power to ORDER them to do so.

With respect to 3), the Court threw up its hands. Plaintiffs demand the whole state certification be suspended, and.../17

... particularly for no certification of any result where ballots were allowed to be cured ANYWHERE, just because THEY didn’t get notice and a chance to cure THEIR ballots. But as the Court rightly concluded, denying 6.8 million people the right to vote.../18

... wouldn’t result in reinstatement of THEIR right to vote. It would only disenfranchise millions of others.

The law requires whatever redress you are seeking to be tailored to your specific injury. That is plainly not the case here.

The court separately found.../19

... that the Trump campaign could not assert “associational standing” because the constitutional interests of Trump voters are distinct from that of the Trump campaign. And in any event, the plaintiffs themselves did not have standing, so the campaign.../20

... also could not have it by proxy. Also, on Trump’s theory of “competitive standing,” citing an awful BIRTHER case (eye roll here), that case refers to the right to challenge an ineligible RIVAL on the ballot, not to piggyback onto another plaintiff’s standing.

The Court.../21

... then for good measure also dismissed the case on its merits, being careful to walk through them in case a higher court disagreed on the standing question. The gist of Trump’s argument is that Boockvar created a “standardless” system.../22

... for mail-in voting, and that this violated the plaintiffs’ rights to Equal Protection. In voting cases, the test for Equal Protection is a balancing act, because the state has a strong interest in regulating elections and to determine the way they proceed, but voters.../23

... have a fundamental right to a fair and unrestricted vote. The more restrictive the laws, the greater the court’s scrutiny, and the less restrictive the law, the less the court need scrutinize.

Here, the court found that the state.../24

... had placed no burden at all on plaintiffs. The defendant counties actually LIFTED a burden on THEIR voters by implementing notice and cure. Expansion of the right to vote in those counties did not burden the rights of voters in OTHER counties. It was perfectly... (cont’d)