Update on Trump’s Coup: Do Not Think That This Is Guaranteed to End Well

NEIL H. BUCHANAN

UF Levin College of Law professor Neil H. Buchanan explains why “being patient with Trump” is a recipe for disaster, why there are still reasons to be guardedly optimistic, and why this all could still end very badly. Buchanan argues that the present situation is not guaranteed end badly, but he cautions that a Trump coup is eminently possible.

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Bognet v. Secretary Commonwealth of Pennsylvania

Docket: 20-3214

Opinion Date: November 13, 2020

Judge: Smith

Areas of Law: Constitutional Law, Election Law

Pennsylvania Act 77 established “no-excuse” absentee voting. All eligible Pennsylvania voters may vote by mail without showing their absence from their voting district on the day of the election; “[a]pplications for mail-in ballots shall be processed if received not later than five o’clock P.M. of the first Tuesday prior to the day of any primary or election” and “a completed absentee [or mail-in] ballot must be received in the office of the county board of elections no later than eight o’clock P.M. on the day of the primary or election” for that vote to count. The Democratic Party argued that a combination of the COVID-19 pandemic and mail-delivery delays made it difficult for absentee voters to timely return their ballots in the 2020 primary election. On September 17, 2020, the Pennsylvania Supreme Court concluded that USPS’s existing delivery standards could not meet the timeline built into the Election Code and that the Pennsylvania Constitution required a three-day extension of the ballot-receipt deadline for the general election. Pennsylvania voters were notified of the extension. The U.S. Supreme Court denied an emergency stay request while requiring that county boards of elections segregate ballots received during the extension. Another federal suit, brought by voters, alleged the Pennsylvania Supreme Court had elevated mail-in voters to a “preferred class” and that counting ballots received after Election Day would unlawfully dilute their votes. The district court denied a preliminary injunction, noting that the provision did not extend the period for mail-in voters to actually cast their ballots and that federal courts should ordinarily not alter the election rules on the eve of an election.” The Third Circuit denied a request for expedited briefing and affirmed without deciding whether the provisions are proper exercises of Pennsylvania’s authority to regulate federal elections. When voters cast their ballots under a facially lawful election rule, private citizens lack standing to enjoin the counting of those ballots on the grounds that the source of the rule was the wrong state organ or that doing so dilutes their votes or constitutes differential treatment.