Fact-check: Pennsylvania's unconstitutional vote-by-mail law
No, there's nothing to see here -- Biden is still the legitimate winner in Pennsylvania
Among the things cited by Trumpists contesting the 2020 election is Pennsylvania’s vote-by-mail law. A Pennsylvania court did indeed find it was unconstitutional in November 2021. But it’s still not a thing, so I’m writing this blogpost to explain why.
Correction: This post originally said it was the Pennsylvania Supreme Court that ruled, it was in fact a lower court. The state Supreme Court has yet to rule on it, and may reverse the lower court.
Verdict
Trumpist interpretation of the court verdict misleading. The court did not rule that the previous election was fraudulent or invalid, only restricts vote-by-mail for upcoming elections. There’s still no evidence of widespread voter fraud in the 2020 Pennsylvania election.
Background
The law in question was passed in October 2019 (before the pandemic). It contained a number of provisions, including one allowing vote-by-mail. Because of the pandemic, vote-by-mail was heavily used in 2020 — probably more than the they’d intended.
Shortly after the election, the law was challenged, such as Kelley vs. Commonwealth of Pennsylvania on November 28, but such cases were denied based on “standing” and “laches”, because such challenges can’t overturn past elections. The court did allow Mileko vs. Commonwealth of Pennsylvania, because that was challenging future elections.
Issue #1 - it was passed by Republicans
The law was passed by a Republican controlled legislature. Well, it was really more of a bipartisan compromise, so it’s not fair to say that vote-by-mail was a Republican plan. But it was something that Republicans didn’t find objectionable at the time.
It was only until after Trump lost did Republicans change their minds.
Issue #2 - unconstitutionality is a technicality
“Unconstitutional” is often used as a synonym for an “attack on our fundamental rights”. That’s because the most famous cases are about fundamental rights, like speech and guns.
But the majority of Supreme Court cases are about relative unimportant and administrative matters, with no fundamental rights at stake. We don’t hear about them because the general public doesn’t care.
As this story explains, the Supreme Court struck down more than 70 Trump actions. For example, the courts said that Trump violated the constitution when denying federal funding to “sanctuary cities”.
It’s rather common for the courts to rule Presidential actions “unconstitutional”, whether Bush, Obama, Trump, Biden, or whatever. It doesn’t mean that these presidents were attacking our fundamental rights in those cases.
That’s what’s happening here — there’s no “fundamental rights” at issue, only minor administrative issues. The Pennsylvania state constitution has provisions about absentee ballots that conflicted with Act 77’s vote-by-mail provisions. Both were legitimate, reasonable provisions. The law matches laws in a lot of other states. It’s just that state constitution provisions take precedent over state law when they conflict.
Issue #3 - it was legitimate in 2020
Just because the law was struck down in 2021 doesn’t mean it was illegitimate in 2020. The law was valid until struck down by the courts.
Trumpists claim that “Trump won” the 2020 election, that he’s the “legitimate” winner. It’s not true — according to the law, Biden won. Under a different set of rules, you might consider Trump the winner, but under the only rules that matter, Biden won.
It’s perfectly reasonable to believe that the change to mail-in ballots gave Biden the victory. But it’s still the law. Biden is the only legitimate winner according to the law.
Losers of elections keep claiming that some other principle should be used to determine the “legitimate” winner. When Trump won in 2016, Hillary supporters claimed Hillary was the actual “legitimate” winner because she won the popular vote. This is nonsense, “popular vote” wasn’t the law. Maybe it should be. Maybe in the future it will be. But in the meanwhile, the only legitimate winner of the election is what the law says, and in 2016, that was Trump.
It’s a basic principles of civics, which people should’ve learned in grade school, but seem to have forgotten. We live in a system called “rule-of-law”. We accept that the law is legitimate. Trumpists contesting the election are in essence saying the law is illegitimate, that the election should’ve been decided by something other than the law.
Issue #4 - standing and laches
Once an election has been run and the counting of votes have started, courts aren’t going to change the rules for that election.
It would be like after a basketball game, where your team has narrowly lost, that you insist that 3-point goals should be changed to 2-points, thus giving your team the win.
It doesn’t matter how reasonable or important the rule change is. What matters is that courts aren’t going to change the rules after the election except in the most extremely circumstances. At most, they are going to insist that pre-election rules are followed.
This was one of the issues at stake in Bush v. Gore in the Florida recounts. Democrats were trying to change the rules for counting votes after votes had been counted. These changes were perfectly legitimate from a certain point of view — future elections were run differently. It’s just that the time to make such changes is before an election, not after.
The courts weren’t going to change the rules to give Trump a victory.
This is the fundamental principle of laches, one of the main reasons the courts rejected challenges, such as Kelley v Pennsylvania. The court said that there was plenty of time to challenge vote-by-mail before the 2020 election, but that Trumpists waited until after the election to challenge it. Even though the court agreed that the law should be overturned for future elections (in Mileko v Pennsylvania), they weren’t going to let Trumpists exploit the system to overturn past elections.
In other words, let’s assume you know for 100% chance that you’d win the case. You therefore create the strategy of encouraging Democrats to vote by mail before the election, and then after the election have such votes thrown out. The court is wise to such tricks and wouldn’t let such a strategy happen.
Much of people’s misunderstanding of the law comes from them trying to get such schemes past the court.
While this Kelley rejection is a concrete example, the same would apply to most Trump challenges. It doesn’t matter how valid their challenges were: if they could’ve been made before the election, but they waited until after the election, the courts weren’t going to hear them.
Many courts didn’t get that far. They instead ruled on standing, which is an even easier reason for courts to reject challenges. If you haven’t been harmed, then you don’t have standing.
In Pennsylvania, the case Trump v Bookvar was rejected because Trump didn’t have standing. The decision goes at great length explaining why — you just have to read it. This Reason piece tries to explain in even simpler language.
Here’s even simpler language: Trump didn’t actually assert he’d been harmed. Since standing requires you to assert you’ve been harmed, if you don’t make that assertion, then you don’t have standing.
Part of the reason is that Trump hires bad lawyers who can’t articulate such things. But part of the reason is that he can’t substantiate fraud. The issues brought up in Bookvar affected all voters (and the candidates they vote for) equally, so Trump can’t show he was unfairly impacted by the issues.
That’s the underlying issue in all the other cases: Trump couldn’t substantiate how he was harmed, and thus, didn’t have standing.
So the answer to the question “Why doesn’t Trump have standing to challenge fraud?” is simply that “Trump can’t substantiate fraud that harmed him”.
Conclusion
Trumpists claim to be “patriots”, but their actions show otherwise. Patriotism means allegiance to the Republic, to pluralism and the rule of law. Trumpists are doing what George Washington feared most, that people would put the interests of their Party above Country. Putting Party above Country is the opposite of patriotism.
Or, if you’d like a more modern reference, it’s like the movie Revenge of the Sith, where Darth Vader was a “patriot” to something other than the Republic. The true patriot was Obi Wan Kenobi, whose allegiance to the Republic, to Democracy.
Yes, yes, this Pennsylvania court did eventually strike down vote-by-mail, but only because the state constitution rules on absentee ballots take precedence, not because some fundamental right was being violated. Trumpists could’ve challenged the law before the 2020 election, but waited until after. At that point, they demanded throwing out 7 million votes as a remedy — a thing that would violate fundamental rights, which no court was going to allow.
(Note: It was a lower court that struck down the law, the state’s Supreme Court is currently looking at it, and may reverse the ruling. Whether mail-in-ballots are legal in the next election still has nothing to do with their legitimacy in the past election.)
According to the law, Biden is the legitimate winner in Pennsylvania. No significant fraud has been substantiated to show otherwise.