Opinions and Legal Insights

Is “Curing” A Colorable Claim Under Equal Protection?


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.

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).