Constitutional Law, Courts

Is “Curing” A Colorable Claim Under Equal Protection? [Updated]
#SCOTUS

There is more rage than reason being expressed in the country over election challenges, but there are some interesting legal issues. One is found in Pennsylvania where the Trump campaign is alleging that counties used different approaches to “curing” ballots. The issue brings back memories of Bush v. Gore, 531 U.S. 98 (2000), under equal protection. Notably, while academics have uniformly dismissed this claim, they largely refer not to the claim but to the relief.  The fact is that there does not seem a sufficient number of votes that could change the outcome of the election. The question however is whether there is still a colorable claim of an equal protection violation.  This could come down to the two distinct parts of Bush v. Gore.

The issue involves curing ballots or allowing voters to correct errors on the mail-in ballots. Some counties in Pennsylvania allowed curing by contacting the affected voters while others simply rejected the ballots. Again, there is no evidence of a partisan pattern or that such curing impacted a large number of ballots. Moreover, the Pennsylvania litigation has gone from bad to worse with the first appearance of Rudy Giuliani as counsel yesterday (though he did get a tip on a good martini bar). The question is whether courts should still address claims when they are unlikely to change the outcome but capable of repetition under a mootness analysis.

However, it does appear that different rules were applied and it is alleged that it resulted in some votes counting and some not counting for lack of curing.

That could lead to a colorable claim like the one raised in Bush v. Gore.  While often portrayed as a 5-4 decision, the actual case involved two parts: the equal protection claim and the remedy decision. The first issue was found by 7-2 to be an equal protection violation in the use of different standards in Florida in the recount. While there have been claims that a couple justices did not want to be included in the count, the case referred to a 7-2 majority.  Only Justices John Paul Stevens and Ruth Bader Ginsburg are recorded as dissenting on the violation.  The majority held:

The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person’s vote over that of another. See, e. g., Harper v. Virginia Bd. of Elections, 383 U. S. 663, 665 (1966) (“[O]nce the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment”). It must be remembered that “the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.” Reynolds v. Sims, 377 U. S. 533, 555 (1964).

Disparate curing standards would seem raise the same concerns, but the margin of the needed votes is much higher in Pennsylvania.

It was on the remedy that the Court split 5-4. I was critical of the decision not to send the case back to Florida to see if a uniform standard could be applied.  I was also critical of the Court expressly limiting the use of the precedent.

The recount process, in its features here described, is inconsistent with the minimum procedures necessary to protect the fundamental right of each voter in the special instance of a statewide recount under the authority of a single state judicial officer. Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.

The question is whether, if the Court finds a colorable claim, it should allow the case to go forward to determine the scope of the problem.  It seems unlikely that such votes would erase the deficit for the Trump campaign. However, if the Court believes that a colorable claim is made, do these voters deserve a full hearing even if the remedy is unlikely to change the outcome of the election?

The plaintiffs can reasonably argue that the injury is not failure to achieve a particular outcome, but the failure to receive equal treatment by the government.  Thus, they can claim an Article III injury and non-mootness.  In Heckler v. Mathews, 465 U.S. 728 (1984), there was a challenge to Congress’s decision to grant larger social security benefits to certain women as compared to similarly situated men.  The statute included a severability clause.  The government argued that the plaintiffs lacked standing and that the case was nonjusticiable. However, the Court held that the plaintiffs had standing to challenge unequal government treatment under the equal protection clause because the relevant injury was the unequal treatment by the government.

I have argued that these cases should be heard and the greatest possible transparency applied on the underlying claims. The reason is that this country remains sharply and dangerously divided on the election with fewer than half calling for an immediate concession by President Trump. The effort to harass Trump lawyers to drop cases or cut off any discovery only fuels this suspicion.  If there is a colorable claim, the court should hear it and resolve.  In Georgia, a recount has found thousands of uncounted votes.  It is unlikely to make a difference but again all votes should be counted and all challenges should be heard. These challenges may also reveal problems (including vulnerability to human error) in a massive mail-in election that could be corrected in future elections.

In Bush v. Gore, the Court cut off further recounting because there was insufficient time. I disagreed with that view. However, in this case, some have suggested that the court should dismiss on the ground that this challenge is likely moot due to the insufficiency of impacted vote.  That would mean that any unconstitutional act would be dismissed unless the plaintiff could show, without meaningful discovery, that the claim could alter the outcome of the election.

Thus, we can argue about whether a colorable claim has been raised or factually supported by the Trump campaign. However, if such a claim is made, some are arguing that no further consideration should be allowed since it is unlikely to change the outcome. Yet, this is a problem capable of repetition and voters have alleged that they were disenfranchised, it would seem reasonable for a court not to dismiss the case and at least demand confirmation on the scope of the problem. It can then render a ruling on the merits of the equal protection claim even if it (in all likelihood) does not order a determinative change in the vote count.

I see the objection that courts should not pursue a case when the vote will not alter any outcome (presuming that a court can make that determination on this record). Indeed, judges have dismissed cases in states like Arizona as moot if they impacted votes are insufficient to change the outcome. Yet, the principle of “counting every vote” is to assure voters that they have a voice in their elections.  The Supreme Court has maintained that every vote should be counted, but mootness doctrine allows for potential violations (capable of repetition) can be left unaddressed. See, e.g., Gray v. Sanders, 372 U.S. 368, 380 (1963). The Pennsylvania courts have reaffirmed the rule that courts will generally not address matters where there is no actual case or controversy between the parties. See Stuckley v. Zoning Hearing Board of Newtown Township, 79 A.3d 510, 516 (Pa. 2013) (we will generally not address matters where there is no actual case or controversy between the parties).  Yet, they have also recognized that “capable of repetition” exception to mootness can apply. Public Def.’s Office of Venango Cnty. v. Venango Cnty. Court of Common Pleas, 586 Pa. 317, 325, 893 A.2d 1275, 1279-1280 (2006).

It undermines that principle when voters are told that their votes will only be counted or protected if a court thinks it might matter.  If for example there were racial or other barriers to voting, I would like to have those issues fully addressed even if they impacted only one district with insufficient votes to flip the election result.

There are interesting arguments on both sides and it should still be possible to discuss such questions without personal or professional attacks. Even if we cannot find common ground, we just might rediscover a common language and interest in discussing such issues.

101 thoughts on “Is “Curing” A Colorable Claim Under Equal Protection? [Updated]”

  1. What an irony. Jujstice Scaliia in Bush v. Gore said the case had no precedential value. And yet everyone…properly . . . discusses the case as though it did. The impropriety was the Supreme Court’s in saying the case had no precedential value when the system relies on precedent for rational development of the law. Of course precedent is an obstacle when you want to do what you want to do

  2. Professor, it is really this simple; we should do everything we can to protect the vote and not to disenfranchise voters. This was the first general election we had vote by mail in Pennsylvania. The election was conducted under the worst of circumstances and the GOP efforts to disqualify voters as well as to not permit the early opening of the first envelope is indefensible. Counties that voted for Trump were given the same opportunity to “cure” and many did out of the same common concern for the sanctity of the ballot. The fiction this was only done in Democratic leaning counties is just another example of the lies that have been smeared across the media by that crack Trump team. Obviously, some of these people who comment on your site do not live in urban areas, do not believe Covid is a killer, and can not fathom every vote does not have a drivers license. This is really not a legal issue but rather a human rights one.

    1. we should do everything we can to protect the vote and not to disenfranchise voters.

      Everything, you say. The Trump legal team thanks you for your support.

      and can not fathom every vote does not have a drivers license.

      Not one vote cast in our most populous state required an ID. Ballot harvesting is allowed. Motor-voter laws enable non-citizens to register to vote. It would seem this state is doing everything possible to not protect the vote for eligible citizens.

    2. “it is really this simple; we should do everything we can to protect the vote and not to disenfranchise voters.”

      False – disenfranchising voters should be avoided.
      But they integrity of the election process is more important.

      That is the FIRST priority.

      “This was the first general election we had vote by mail in Pennsylvania.”
      Correct – and historically there is a 20% rate of invalidation on mailin ballots – especially the first time.
      Even absentee ballots which are handled much better than mailin ballots have a 6% rate of invalidation.

      Invalidating votes because of assorted errors is actually VERY important – it is the means by which we prevent fraud.

      There is no easy means to tell a ballot that is invalid because the voter screwed up, from one that is invalid because someone else was trying to vote for that voter.

      Nearly all the states we are fighting over have voter ID laws. Mailin ballots vitiate those laws. The only means of verifying the Identity of the alleged voter is through the information on the outer envelope. It the signature does not match, it the other information is omitted or incorrect, the ballot must be rejected.

      “The election was conducted under the worst of circumstances”
      No, the cuircumstances were normal. It is the mailin voting that was done badly. And the mishandling of mailin voting was a CHOICE, In many cases it was a unilateral choice of governors without consulting the legislature. That is improper,

      Covid does not give the governor the ability to ignore the requirement that legislatures set the rules for elections. Further any emergency authority that lasts for 9 months is inherently unconstitutional. Emergencies last for days. Multi-month “emergencies” are just the real world.

      Governors are not dictators. Ultimately they MUST go to the legislators.

      But this is more important regarding voting as the constitution delegates elections to the state legislatures and congress NOT governors, not state courts.

      There is little emergency power to go arround the legislature for normal matters. There is none to go arround legislatures for elections.

      “and the GOP efforts to disqualify voters”
      The laws in these state REQUIRE election officials to disqualify ballots that do not meet the criteria of the law.
      This is nothing new. It is not even unique to the GOP. Every state has laws that dictate when a ballot is to be disqualified.
      They have rules for absentee ballots, they have rules for in person ballots and rules for mailin ballots.

      These laws MUST be followed – in New York and California, and Pennsylvania and Michigan.

      We should probably have congress make those rules so they are the same accross all states. But that is not how things are right now.
      That said the rules are actually quite similar from state to state.

      “as well as to not permit the early opening of the first envelope is indefensible.”
      No it is actually the norm accross most of the country.

      Elections occur on ONE DAY. If precincts do not have the resources to process all ballots – in person, absentee, and mailin, on election day,
      Then they need to demand more resources. Generally the state and federal government allocate resources EQUALLY to every congressional district. As each district has the same number of people.
      Urban districts should be resource heavy – as they are physically smaller – people can walk to the polls.

      95% of the districts in the country can manage to process the election on election day.

      Just as mailin elections are a huge vector for fraud that can not be corrected – Mailin voting is not and can not be Secret Ballots.
      Therefore it is possible to coerce or induce people to vote. That is a huge fraud window, and there is nothing we can do about it.
      It is very hard to get evidence to prosecute either coercion of inducement with mailin ballots.

      We confine elections to a single day ALSO as an anti-fraud measure.

      Much of pre-election ballot processing raises the risk that interested parties will gain the innformation they need to tilt the election.

      But post election delays are even worse. When 95% of precints have reported the losing parties know exactly how many votes they need to make up. If you allow late voting, you pretty much guarantee fraud.

      “Counties that voted for Trump were given the same opportunity to “cure””
      That is false. Curing is illegal. Trump districts – indeed nearly all districts in these states followed the law.

      It is not the job of election officials to attempt to correct invalid ballots. They have no ability to know whether an invalid ballot is an honest mistake by a voter or fraud.

      If you wish to do anything at all – the election officials could – if state law allows notify the voter their ballot was rejected and that they could correct the problem by voting in person. Which BTW most states did. In PA you could go online and determine if your ballot was received and valid.

      ” and many did out of the same common concern for the sanctity of the ballot.”
      Using words like sanctity does not make something sacred.

      It is elections that we are trying to protect from fraud not ballots. We reject invalid ballots all the time.
      If you want your vote to count it is the responsibility of the voter to follow the rules – it is not the responsibility of election officals to fix errors.

      One of the reasons it is not, is because that is an open invitation to fraud.

      “The fiction this was only done in Democratic leaning counties”
      Both false and irellevant.

      In PA you can read SB-421 – that is the LAW and there are sections covering the handling of ballots.
      If the law was not followed – whether in a GOP district or a Democratic one, there must be serious consequences.
      Otherwise there is no law and we will get lots of Fraud.

      “is just another example of the lies that have been smeared across the media by that crack Trump team. ”
      We have listened to this nonsense for years.
      Trump lied about the Obama administration spying on him.
      He lied about Russian Colusion.
      He lied about the Biden’s in Ukraine.

      Except he didn’t – YOU did! You the media, the left have lied constantly.

      So why is anyone to beleive you now when you say once again That Trump and republicans are lying.

      Trump did not foist a mailin election on everyone – you did.
      Trump did not magically make rejection rates for invalid mailin ballots drop from 20% – that was the rate in the Democratic primaries in May, and the normal rate for mailin ballots – to 0.25% in PHiladelphia – that is a two orders of magnitude drop, you expect anyone to beleive there was not funny business ?

      Trump did not chase the election observers out.

      Trump did not change the rules in mide stream without any authority to do so.

      You claim that Trump is authoritarian – yet in the past 4 years the only people who have acted broadly and unilaterally outside the law have been democratic governors.

      “Obviously, some of these people who comment on your site do not live in urban areas, do not believe Covid is a killer,”

      Does not matter. You are entitled to vote. You are not entitled to vote from your bedroom, with ice cream.
      You are not entitled to vote for other people. You are required to prove that you are who you claim to be in order to expect your vote to count.

      Tens of millions of people managed to vote this year – in person at the polls.
      The had to make an effort to do so. They drove to the polls, they provided ID, they signed the register, they received a blank ballot they went to a voting booth and filled that ballot out, and then scanned their vote. Because they voted in secret no one could coerce them, no one could bribe or induce them. And their votes were counted when they were scanned.

      If you are too concerned about Covid to go out and vote – that is your free choice.

      There are millions of reason to note vote – if you do not want to. Your not entitled to have government magically removed them.

      “and can not fathom every vote does not have a drivers license.”
      Really ? Black people are too stupid to get a drivers license or state ID ?

      Regardless, every state with Voter ID allows those without ID to vote provisionally, by signing an affadavit that they are who the claim they are.

      The left’s claim about Voter ID are both false and a red herring.

      “This is really not a legal issue but rather a human rights one.”

      It is the right of real people who went to the trouble to prove they were who they said they were and actually get to the polls to vote in a manner they were sure their vote would could not to have their votes canceled by invalid mailin ballots.

  3. The socialist version of equal protection under the law quotes from a different document written in and for the soviet union.

  4. Prof. Turley you get lost in the legal woods.

    There are far bigger real issues. Most everything that equal protection applies to – requiring a state to follow its own rules also applies to.

    That is just basic rule of law. While a final SCOTUS decison does not yet exist – it is quite clear already that there are atleast 4 votes to require the state of PA (and all other states) to conform their own conduct to their own laws. That two is an equal protection claim.

    That claim not merely applies in PA to the acceptance of ballots after 8pm election day but also to the entirety of allowing mailin elections.

    It is arguable that a properly administered absentee ballot process does not differ substantially from in person voting.
    The sanctity of secret balloting is preserved in both. But secret ballots and mailin voting are not compatible. Frankly mailin voting is not compatable with trustworthy results.

    The power of the states to set their own voting rules does not extend to violating the right of citizens to trustworthy elections.

    There is no possible means to correct the inability to trust mailin voting.

    It should be self evident to nearly everyone that mailin voting is the hanging chad of 2000 on steriods. It is an uncorrectable disaster.

    I would note another issue that Bush V. Gore danced arround.

    Voting is supra constitutional. The legitimacy of government does not exist without trust in elections.

    The constitution as written would have allowed the states to only permit first born sons to vote. IF States tried to do that today – constitutional or not people would revolt. Do we have to wait for massive systemic fraud that we can prove before we can thwart an abysmal idea whose mere existance undermines the trust in our elections.

    You noted in other articles that there is still no majority expecting Trump to concede. This alone should demonstrate we have no confidence in this election.

    It is likely that as this winds its way through the courts – that support will diminish. But at what point is the support of a large minority something we can ignore when the trust of the people in their government is the overarching issue.

    Are 51% of us free to impose whatever election result we want on the rest through any process we wish ?

    While the minority may not be entitled to the outcome they want, they are entitled to a process that is trustworthy – even if the majority is happy with the outcome.

  5. There are so many different rules within states and between states that fraud can alter the election. That should not be.

    1. I agree Allan. These Laboratories of Democracy have been experimenting on our electoral process for far too long. It’s time to acknowledge which experiments have failed and which have succeeded. The obvious question is what is the motivation to continue down this path every election cycle? These states that continuously fail, impact the entire nation. Any opposition to a nationwide standard defies logic. Consider this; progressives in both major political parties have spent entire careers at the federal level trying to regulate anything that moves. And they want us to believe they suddenly believe in state’s rights when it comes to elections. That doesn’t pass the smell test. What is more likely is standardizing our electoral process puts too much emphasis on the will of the voters. And that of course would mean public policy outcomes would be weighed against the political rhetoric. That is not something they are just going to leave to chance.

  6. I thought the plaintiff in PA was the Republican Party of PA, in which case the mootness argt may be inapt. Surely there are downballot races where the margin of victory is less than the number of disputed ballots.

  7. I agree with JT that these issues need to be resolved, and not just dismissed as moot. However, I do not support holding up the certification of the vote or the transition process while this all plays out. Since it won’t affect the outcome, there is no reason to rush the cases though the courts.

  8. I wonder why this is so difficult to understand. This is the 2000 election shoe on the other foot. Let the process work and end however it does. I personally think the final outcome remains the same, but if there are mistakes or nefarious happening, then they need to be addressed. I can see nothing worse than mistakes made or criminal activity not being corrected on an election. That will undermine legitimacy. Even if the Trump side loses in the end, at least claims were investigated and resolved. They may not be any happier, but I expect they would accept the final outcome better.

    1. Yeah, Quiet, except there are 5 states instead of one and 300,000 votes instead of 500. Otherwise, exactly the same.

      1. So what is different? The base argument is the same. One side does not like the outcome and is challenging the result. The other side is saying the election is over. The challenge is going to win or not. Trying to prevent a challenge is wrong now as it was in 2000. Interesting when shoes change feet how opinion changes.

  9. Altering ballots–whatever fancy name one gives the action–should be illegal. If the ballot isn’t filled out correctly then the voter was incompetent to both fill it out and was incompetent to seek assistance (at the poll) to fill it out. As such it should simply be disqualified instead of being “interpreted” and altered by a political operative who will belong to one party or the other. Seems painfully obvious to me.

  10. “the Pennsylvania litigation has gone from bad to worse with the first appearance of Rudy Giuliani as counsel yesterday (though he did get a tip on a good martini bar).”
    You cannot keep your smugness under wraps. It is OH SO FUNNY and chock full of IRONY! You have been a part of the swamp for years apparently unwittingly.

  11. We can permanently eliminate voter suppression in all its forms by REPLACING our current voting system of ballots and bull#@%^ with SECURE ONLINE VOTING. Remember when Americans stood in long lines that snaked through the bank and out the front door down the sidewalk? We ELIMINATED those long lines and problems by implementing SECURE ONLINE BANKING. So why don’t you sit there and tell me how wrong I am for demanding we implement SECURE ONLINE VOTING, THEREBY COMPLETELY ELIMINATING ALL THE PROBLEMS WITH OUR CURRENT VOTING SYSTEM: SEE, SOCIAL SECURITY VOTING: http://ssvoting.com

    1. Dominic Connor has the following response:

      We don’t have secure online banking. Identity fraud is an industry all byitself and banks have to constantly spend real money to reduce that and all the other types of fraud, theft and simply screwing with people because they can.

      That last part is the fundamental diffeence. If you stal money from a bank hack, you have to get in, do the dirty, get out and take the money with you, wther you use a gun or warez.

      Messing with an election is more like smashing the windows, you can attack and run and don’t need to take anything out.

      Also there is a difference in scale and consequence but a similarity in effect. Banks lose money to fraud all the time but at a scale they can afford. There is election fraud in the USA, UK et al , but it’s really trivial. What % of americans don’t know that Donald Trump is President and might vote accidentally the wrong way ? Electoral Fraud is way smaller than that.

      As a simple test ask anyone you know who programs professionally if voting should be electronic. 50 % will iterally laugh at the idea, 49.9% will say no, with emphasis and 0.1$% who are hyper partisan and believe it will benefit their side.

      If 99.9% of dentists tell you sugar is bad for your teeth, what do you believe ?

      So what would happen if a bank was defrauded on such a massive scale that it’s ability to function was put in doubt ?

      Yeah, a bank runs, turmoil and the regulators backed by the government would have to step in.

      Same with elections.

      Look at the margins for the last few elections in the USA, you would not have to hack 100 million IDs, just perhaps a few hundred thousand in the right places.

      Data breaches of firms like financial Experian are almost routine, they managed to lose millions of people’s financial data.

      It doesn’t even need to happen. What if there is a close election and one side cries that there has been serious fraud by other or the Russians, Chinese and Blofeld ?

      There is no regulator to sort things out.

      This is how violence starts what if a sitting President flatly refuses to leave office believing rightly or wrongly that it has been hacked?

      Yes, the Supreme court can give a ruling, or the equivalent in another country, but they are appointed by politicians adfter scrutinising their views, not wholly unbiased. This is hardcore techie stuff, these judges are smart people, but their education and experience is wholly inadequate for deciding the detail and so the arguments will rage for days or even weeks.

      What if they declare the election invalid ?

      The fact is that the absurd process of bits of paper is hard to hack.

    2. You are wrong.

      It would probably solve some problems and create new problems. It is certainly worth to explore, but on its face it is rife with issues. The easiest one for me: how do you get people to vote online when they do not have access to online? What would you do? Have them go to a place and vote electronically? We have that now, it is called a polling place.

      1. Unless they live in a time-warp or a cave in the Sahara EVRYONE has access to the internet–even if they have to get in the car and drive to the library like they do to a polling place. That “no access” argument is akin to ridiculous Democrat argument against voter IDs based on claims that some people wouldn’t be able to get an ID. The real issue is that online voting can so very easily be hacked and cheated.

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