There is more anger than sanity in the country over election challenges, but there are some interesting legal issues. One of these can be found in Pennsylvania, where the Trump campaign claims that counties have used different approaches to “healing” ballot papers. The edition brings back memories of Bush versus Gore, 531 US 98 (2000), under the same protection. While academics have consistently denied this claim, for the most part they relate not to the claim but to the relief. The fact is, there doesn’t seem to be enough votes that could change the election result. The question, however, is whether there is still a colorable claim to a violation of the same protection. This could be due to the two different parts of Bush versus Gore.
The problem is healing ballots or allowing voters to correct mistakes in the mail-in ballot papers. Some Pennsylvania counties allowed healing by contacting affected voters, while others simply refused the ballot. Again, there is no evidence of a partisan pattern or that such a healing affected a large number of ballot papers. Additionally, the Pennsylvania litigation has continued to worsen with Rudy Giuliani’s first appearance as a lawyer yesterday (although he got a tip for a good martini bar). The question is whether courts should still bring claims when it is unlikely that they will change the outcome but can be repeated as part of a mootness analysis.
However, it appears that different rules were applied and it is claimed that some votes were counted and others were not counted due to lack of healing.