Leveling Up or Leveling Down Equal Protection Remedies - The Trump Challenge to the PA Election

In the recent case of the Trump challenge to the Pennsylvania votes, garnering much scholarly attention, one issue is the appropriate remedies for equal protection violations and the question of leveling up or leveling down. See Trump for President v. Boockvar, (M.D. Pa. Nov. 21, 2020). Plaintiffs allege an equal protection violation from some counties allowing correction or curing of defective mail in ballots, but not other counties including theirs.  They seek the remedy of invalidating the votes that were allowed to be corrected rather than allowing theirs to be cured.

The Supreme Court addressed this issue in the 2017 case Sessions v. Morales-Santana, 137 S.Ct. 1678 (2017).  And I wrote about it extensively in,  Leveling Down Gender Equality, 42 Harvard J. Law & Gender 177 (2019), challenging the Court's decision in Morales-Santana leveling down the remedy for gender discrimination against fathers in grants of citizenship.

I think the district court gets it right here in the PA case:  that the presumption is leveling up.  And it is arguably an easier case as leveling down threatens the fundamental rights of others. 

From the Boockvar decision:

Moreover, even if they could state a valid claim, the Court could not grant Plaintiffs the relief they seek. Crucially, Plaintiffs fail to understand the relationship between right and remedy. Though every injury must have its proper redress,116 a court may not prescribe a remedy unhinged from the underlying right being asserted.117 By seeking injunctive relief preventing certification of the Pennsylvania election results, Plaintiffs ask this Court to do exactly that. Even assuming that they can establish that their right to vote has been denied, which they cannot, Plaintiffs seek to remedy the denial of their votes by invalidating the votes of millions of others. Rather than requesting that their votes be counted, they seek to discredit scores of other votes, but only for one race.118 This is simply not how the Constitution works.

When remedying an equal-protection violation, a court may either “level up” or “level down.”119 This means that a court may either extend a benefit to one that has been wrongfully denied it, thus leveling up and bringing that person on par with others who already enjoy the right,120 or a court may level down by withdrawing the benefit from those who currently possess it.121 Generally, “the preferred rule in a typical case is to extend favorable treatment” and to level up.122 In fact, leveling down is impermissible where the withdrawal of a benefit would necessarily violate the Constitution.123 Such would be the case if a court were to remedy discrimination by striking down a benefit that is constitutionally guaranteed. Here, leveling up to address the alleged cancellation of Plaintiffs’ votes would be easy; the simple answer is that their votes would be counted. But Plaintiffs do not ask to level up. Rather, they seek to level down, and in doing so, they ask the Court to violate the rights of over 6.8 million Americans. It is not in the power of this Court to violate the Constitution.124 “The disenfranchisement of even one person validly exercising his right to vote is an extremely serious matter.”125 “To the extent that a citizen’s right to vote is debased, he is that much less a citizen.”126 Granting Plaintiffs’ requested relief would necessarily require invalidating the ballots of every person who voted in Pennsylvania. Because this Court has no authority to take away the right to vote of even a single person, let alone millions of citizens, it cannot grant Plaintiffs’ requested relief. 

116 Marbury v. Madison, 5 U.S. 137, 147 (1803).
117 Gill, 138 S. Ct. at 1934 (“A plaintiff’s remedy must be tailored to redress the plaintiff’s particular injury.”) (citing Cuno, 547 U.S. at 353).

118 Curiously, Plaintiffs now claim that they seek only to enjoin certification of the presidential election results. Doc. 183 at 1. They suggest that their requested relief would thus not interfere with other election results in the state. But even if it were logically possible to hold Pennsylvania’s electoral system both constitutional and unconstitutional at the same time, the Court would not do so.
119 Heckler v. Matthews, 465 U.S. 728, 740 (1984) (internal citations omitted).
120 Id. at 741; Califano v. Westcott, 443 U.S. 76, 90-91 (1979).
121 E.g., Sessions v. Morales-Santana, 137 S. Ct. 1678, 1701 (2017).
122 Id. (internal citations omitted).
123 See Palmer v. Thompson, 403 U.S. 217, 226-27 (1971) (addressing whether a city’s decision to close pools to remedy racial discrimination violated the Thirteenth Amendment); see also Reynolds, 377 U.S. at 554 (citing Mosley, 238 U.S. at 383).

However, it should be noted that Justice Ginsburg in Morales-Santana rejects this focus on particularized individual injury.  Even though that is the longstanding standard of standing, redressability, and remedies.  And what I, and other Remedies and Constitutional Law Scholars argued was the correct standard.   Instead, she finds that a equal protection remedy is sufficient if it corrects the unconstitutional government action.