Could Pennsylvania Vote Hinge on a Supreme Court Call?

Votes are counted at the Pennsylvania Convention Center on Election Day in Philadelphia, Pennsylvania, November 3, 2020. REUTERS/Rachel Wisniewski

As Tuesday night lapsed into the wee hours of Wednesday morning without a winner of the 2020 election, there seemed to be no small amount of confusion about the election-law case from Pennsylvania that could go a long way toward deciding the presidential race, Republican Party of Pennsylvania v. Boockvar. Here are a few basics about the litigation’s issues and procedural posture.

What Is the Case About?

It is a challenge by the Pennsylvania Republican Party to an order by the state supreme court, which presumed to modify the governing election-law statutes that had been enacted by the state legislature.

In 2019, the Pennsylvania legislature overhauled the state’s election law. The new statute liberalized the use of mail-in ballots and extended the time by which ballots must be received by the county boards of elections. Under longstanding state law, the relevant consideration is when ballots are received by the election boards, not when they are mailed or otherwise submitted by the voter. Prior law required mail-in ballots to be received by 5 p.m. on the Friday before Election Day. The 2019 statute extended this deadline to 8 p.m. on Election Day — i.e., when the polls close for in-person voting.

In spring 2020, the legislature made some changes to accommodate health concerns arising out of the coronavirus pandemic. There was further liberalization of mail-in voting. Most significantly, though, the state legislature decided not to alter the deadline for the receipt of ballots — it remained 8 p.m. on Election Day.

Although the legislation enacted in 2019 and 2020 was a bipartisan compromise, the state Democratic Party filed a lawsuit, Pennsylvania Democratic Party v. Boockvar, urging the state courts, in essence, to rewrite the state legislature’s statutes in order to make further accommodations in light of COVID-19 concerns. Kathy Boockvar is Pennsylvania’s secretary of state. She is a Democrat but was named as a defendant because she is responsible for overseeing elections under state law.

This was something of a rigged game. In Pennsylvania, judges are elected, not appointed. The majority of the state supreme court judges are elected Democrats. The state supreme court ruled 4–3, over the objection of the state’s Republican Party and the dissent of Republican judges, to rewrite Pennsylvania’s election statutes.

Most significantly, the state court did what the legislature had refused to do: It extended the deadline for ballots to be received at the board of elections for three days — from 8 p.m. on Election Day (November 3) to 5 p.m. on Friday, November 6.

Nominally, the ballots received during this three-day extension only count if they were mailed on or before the Election Day deadline (again, 8 p.m.on November 3). Nevertheless, the court judicially mandated a presumption that potentially undermines this requirement: A ballot received during the extension period is to be deemed timely unless there is clear evidence that it was mailed late. That is, if a ballot has no postmark, or if the postmark is illegible, it is to be treated as if it were mailed on or before 8 p.m. on November 3, even if it was actually mailed or otherwise submitted after that time — as long as it is received by close-of-business on November 6.

Meantime, Boockvar switched sides in the case: shifting from defending the legislature’s law to defending the Democrat-controlled court’s rewrite of the law. Furthermore, she issued guidance loosening the state’s process for matching ballot signatures: Election boards in the state’s 67 counties may not set aside ballots based solely on signature analysis.

Consequently, for example, if a ballot has no postmark and the signature on it does not appear to match the signature on file, the ballot will be accepted as valid even if, in fact, the ballot was not completed by the named voter and was submitted between November 4 and 6.

How Did the Case Get before the U.S. Supreme Court?

The case is in an unusual posture because of exigent timing circumstances as Election Day loomed.

In late September, the state Republican Party applied to Justice Samuel Alito for a stay — basically, an injunction to block application of the state supreme court’s rewrite of the state legislature’s election statutes. In federal terms, Pennsylvania is in the Third Circuit, and Alito is the Circuit Justice to whom such emergency applications are made from state court decisions. As the rules permit, Alito referred the application to the full Supreme Court.

On October 5, the Supreme Court announced that it could not act on the application for a stay because it was deadlocked, 4–4. Justice Ruth Bader Ginsburg died in late September and Justice Amy Coney Barrett had not yet been confirmed. With the Court having just eight members, Chief Justice John Roberts voted with the Court’s three liberal justices (Stephen Breyer, Sonia Sotomayor, and Elena Kagan) to deny the stay, while the four conservative justices (Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh) issued a curt announcement that they would have granted the stay.

There has been confusion about what this means, with some media reporting contending that the Supreme Court had “approved” the state court’s rewrite of Pennsylvania election law. This is not so. The high court did not act one way or the other. The 4–4 tie left the state court order in effect — not because the Supreme Court had approved it, but because the tie rendered the Supreme Court unable to act. And the Court obviously never reached the merits of the case — the narrow issue before the justices was whether to grant a stay in order to suspend the state court’s order until the justices could consider its legality.

On October 23, the state Republican Party submitted a petition for a writ of certiorari — the procedure by which a party asks the Supreme Court to review a lower court decision. This was a request that the Supreme Court review the merits of the state court’s rewrite of election law.

Clearly, that would have the case on a too-slow track — the response of the Democratic Party would not have been due until November 25, more than three weeks after Election Day. So, the Republican Party also included an emergency application asking the Court to hear the case on an expedited basis.

On October 28, the Supreme Court announced that it would not expedite consideration of the case — at least not to rule on it before Election Day.

Having just been sworn in the preceding day, Justice Barrett did not take part in the case. Importantly, she did not recuse herself. She did not partake in the decision because she had not yet had time to participate in the case.

It appears that all eight remaining justices agreed that it was too late, with the election just five days away, to expedite consideration of the case so rapidly that it could be decided on the merits prior to Election Day. Nevertheless, Justice Alito issued a statement (in the form of a short opinion), which was joined by Justices Thomas and Gorsuch. Alito stressed that the petition for a writ of certiorari was still pending before the Court. The only preliminary decision the Court had made was not to expedite consideration of the case so that it could be ruled on before Election Day. This means the Court could still expedite consideration of the case after Election Day.

Consequently, Alito prodded the parties to agree to maintain the status quo ante. This would mean segregating all ballots received after 8 p.m. on Election Day. That would give the Court the opportunity to rule on whether those late-arriving ballots should be counted (i.e., ballots that came in after the state legislature’s November 3 deadline but during the state court’s extended November 4-6 period). The state agreed to do this. It issued guidance to all election boards that the ballots arriving after 8 p.m. on November 3 must be segregated. That way, if the Court were to rule that they should not be counted, they can readily be removed from the count.

Alito, Thomas, and Gorsuch strongly signaled that they believe the state court’s rewrite of state election law is probably invalid.

So What Are the Issues?

The Constitution states that state legislatures — not state courts, federal courts, or state bureaucracies — have the power to set the rules under which federal elections take place. The only limitation on state legislatures, beside the Constitution itself, is Congress, which has the authority to set rules about such matters as the timing of federal elections. By statute, Congress has established that Election Day takes place on the first Tuesday after the first Monday in November — this year, November 3.

The Pennsylvania state supreme court thus arguably violated the law in at least two ways. First, it countermanded the state legislature, which it does not have the power to do under the Constitution. Second, to the extent its order may — as a practical matter — permit voting to continue after November 3, it undermines Congress’s power to set November 3 as Election Day.

To be clear, the state court does not expressly permit voting to continue after November 3, only counting. But, as discussed above, the presumption that non-postmarked ballots must be treated as if they were submitted by or before November 3 invites fraudulent voting after November 3.

There is some case law suggesting that state courts may have more leeway than federal courts to amend state election law, on the federalism rationale that federal courts (including the Supreme Court) should not interfere with a state’s interpretation of its own laws. Chief Justice Roberts resorted to this rationale to reason that a federal court could not validly rewrite Wisconsin’s state election laws, even though Roberts appears open to the possibility that Pennsylvania’s own state court may alter the state’s election laws.

Nevertheless, the text of the Constitution does not make this distinction; it says that the power belongs to state legislatures — i.e., not to courts of any kind, federal or state. This interpretation seems to have the approval of at least three justices on the Court — Alito, Thomas, and Gorsuch — and Justice Kavanaugh has also subscribed to it (in an opinion by Gorsuch in the Wisconsin case). This interpretation could also appeal to Justice Barrett, a self-described originalist and textualist, but she has not weighed in at this point.

Here, two other points should be noted.

First, the Pennsylvania supreme court did not claim there was anything unconstitutional or otherwise invalid about the state election law. It just presumed it had the power to act in order to address COVID concerns. This is important because (a) it means that even the state court does not claim that it had a U.S. Constitution–based reason to undermine the state legislature’s U.S. Constitution–based power; and (b) the U.S. Supreme Court, very much including Chief Justice Roberts, has been emphatic that the primary responsibility for dealing with the pandemic lies with state political representatives, not courts; here, the state court is attempting to substitute its own policy judgment for the state legislature’s.

Second, Barrett could now participate in this case. There were calls by Democrats for her to recuse herself from any cases involving the 2020 presidential election, and she has said that, in any case where she is asked to recuse, she will make a legal judgment about whether or not that is warranted. Nevertheless, there appears to be no legal basis for her recusal. The fact that she was appointed by President Trump is no more relevant with respect to her case than it is with respect to Trump appointees Gorsuch and Kavanaugh. Moreover, the appointments of Justices Kagan and Sotomayor were championed by Vice President Biden during the Obama administration. That is not a basis for recusal.

It is up to a justice whether to recuse. Kagan did not recuse herself from Obamacare cases, even though she was the Obama administration solicitor general and helped develop the Obama administration’s legal position on the legislation. Before being appointed to the high court, Breyer was one of the architects of the federal sentencing guidelines, but he did not recuse himself when the constitutionality of the guidelines was challenged. Gorsuch and Kavanaugh not only were not disqualified from last term’s cases involving President Trump’s personal finances, they ruled against him.

Finally, a fundamental point needs to be made. As the above discussion demonstrates, the Supreme Court is different from other courts in that it does not have to take cases. For the most part, it is the master of its own docket. The history of the Pennsylvania election-law case elucidates that a faction of the Court, led by the chief justice, does not want anything to do with this case because it would unavoidably thrust the Court into our very divisive electoral politics. I have argued that it would have been much better for the Court to have taken the case weeks ago, when it would properly have been understood as clarifying the election rules, rather than risk having to make a ruling post-election, when many would portray it — unfairly but inevitably — as deciding the winner of the presidency. Nevertheless, several of the justices would clearly prefer to avoid election-law cases if at all possible.

I mention this because President Trump did himself no favors with his rash 2:30 a.m.statement that he believes he has won the election and that, if it is denied him, there must have been fraud. I won’t belabor the points ably made by others that these remarks were irresponsible and undermine a process the president should be trying to legitimize, for the country’s sake and his own. My narrower point is that, from a legal standpoint, the statement was a blunder.

Again, in the weeks before yesterday, the Court had made it abundantly clear that it wants no part of this case. Now, Trump has made matters thermonuclear by alleging fraud, even though none has been proved (for now, we just have an increased possibility of fraud). Since the Supreme Court does not have to take the case, the president’s remarks have strengthened the hand of Roberts and other justices who appear to be arguing that the Court should let things play out for a few weeks more and maybe the election will resolve itself without the Court’s intervention.

As noted above, if the Court does not agree to expedited consideration of the Pennsylvania case, the Democrats’ response to the Republican petition for certiorari review would not be due until November 25. That gives Chief Justice Roberts an opening to say that, for now, the Court need be in no hurry. The justices could wait and see how the Pennsylvania ballot count goes. If the state authorities announce a result, and it appears that the late-arriving ballots would not change the result, the Court could just decline to hear the case.

In any event, the political part of the election is at an end. The president can do no more at this point to persuade voters. If we are headed into a litigation phase, he should leave public statements to his very capable lawyers. This is not a situation where he or the country will be well served by his penchant to wing it in an incendiary way.

Via National Review