THE ELECTION LAWSUIT TRUMP SHOULD WIN. In its effort to challenge vote counts in key states, the Trump campaign has filed lots of lawsuits that have little chance of winning. But there is one suit that it should win — not only for the Trump campaign or the 2020 election but for all elections in the future. It’s the court fight over Pennsylvania’s election rules, and it involves a fundamental issue that is important to all 50 states.
The first thing to remember is that the Constitution gives state legislatures the authority to make rules governing the conduct of elections for federal offices in their state. In October 2019, the Pennsylvania state legislature passed Act 77, which updated and revised the rules for elections in the state. For the first time ever, it allowed all Pennsylvanians to vote by mail if they chose, without requiring that they show they would be absent from their voting district on election day. Remember, this was pre-coronavirus, and Pennsylvania was moving toward greater voting by mail than in the past.
On the question of voting by mail, the legislature made one clear, unambiguous requirement: All mail-in ballots had to be received by 8 p.m. on election day. (It let stand an existing law that allowed military and overseas ballots to be received for seven days after election day.)
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Then, in March of this year, after the arrival of the virus, the legislature revisited the law. It made some changes to accommodate voting in a pandemic. It re-scheduled the state’s primary election and included measures to help reduce crowding at polling places. But it left untouched the requirement that all mail-in ballots had to be received by 8 p.m. on election night.
That’s where things stood as the presidential election approached. Then a number of Democratic groups filed a lawsuit against the secretary of state. The groups said the pandemic required that the deadline for receipt of absentee ballots be extended. The case went to the Pennsylvania State Supreme Court, which has a 5 to 2 Democratic majority. On September 17, the court threw out the legislature’s deadline for ballots and created a new one: 5 p.m. on November 6, three days after election day. The justices just made it up.
They did not claim that the existing law was unclear. “We are not asked to interpret the statutory language establishing the received-by deadline for mail-in ballots,” the majority justices wrote. “Indeed there is no ambiguity regarding the deadline set by the General Assembly.” Nor did they claim that the existing law was unconstitutional. “We are not asked to declare the language facially unconstitutional as there is nothing constitutionally inform about a deadline of 8:00 p.m. on election day for the receipt of ballots,” the justices added. Instead, the justices claimed that an “extraordinary situation” existed. They repeated a lot of the fretting Democrats engaged in earlier this year about the Post Office. And then they declared coronavirus a “natural disaster,” threw out the law, and wrote a new one.
Republicans immediately protested. The Constitution gives the legislature the power to make election law, they argued, and in March the legislature, fully aware of the coronavirus situation, passed a law governing the 2020 election. The court can’t just make up a new law. The matter went to the U.S. Supreme Court, which split 4 to 4 on whether it should intervene. (New Justice Amy Coney Barrett was not up on the case.) That meant the Court took no action. Pennsylvania would keep accepting ballots for three days after election day.
Justice Samuel Alito protested vigorously. “The Court’s handling of the important constitutional issue raised by this matter has needlessly created conditions that could lead to serious post-election problems,” he wrote. But Alito’s words went unheeded, and the election went on with the state supreme court’s new ballot deadline. The results in Pennsylvania, of course, are very close — it took days to call the race for Joe Biden — and the court-created deadline is part of a confusing and difficult situation. Along with Justices Thomas and Gorsuch, Alito concluded that the Pennsylvania case “has national importance, and there is a strong likelihood that the state supreme court decision violates the federal Constitution.”
So now, with the election over, the issue is headed back to the Supreme Court. And putting aside the specifics of the Pennsylvania situation, the matter concerns a hugely important principle, which is the constitutional authority of state legislatures to make election law for their states. Other states with no stake in the Pennsylvania results can see that. On Monday, ten states — Missouri, Alabama, Arkansas, Florida, Kentucky, Louisiana, Mississippi, South Carolina, South Dakota, and Texas — filed an amicus brief upholding the importance of the constitutional rights of state legislatures. “The Pennsylvania supreme court’s decision overstepped its constitutional responsibility, encroached on the authority of the Pennsylvania legislature, and violated the plain language of the [Constitution’s] Election Clauses,” the states, which are all governed by Republicans, wrote.
Who will win? Who knows, but it appears Republicans have a strong case that the Pennsylvania court exceeded its authority. In an email exchange, I asked John Yoo, the Berkeley professor and former George W. Bush Justice Department official, what might happen, and here is what he said:
Story cited here.