By Alexander Macris (https://macris.substack.com/)
If you’ve been following the mainstream media, you’ve probably read that Trump intends to file a lawsuit in Pennsylvania to “stop counting votes.” Most likely, this has been presented as an outrageous evil, unjustifiable by any standards of common decency, and grossly unconstitutional. Is that really the case? Or is it more complex than that?
There will be a lawsuit, no doubt; and it will involve a lot of votes being thrown out. The plaintiff (Trump and/or the Republicans) will win, because Pennsylvania’s highest court has almost certainly violated the Constitution of the United States. That’s why, in the weeks ahead, the Supreme Court of the United States (SCOTUS) is going to rule in favor of Trump.
Let’s wind the clock back about a week to explain how we got here.
On October 28, 2020, in Republican Party of Pennsylvania vs. Boockvar, SCOTUS declined “a motion to expedite consideration of a petition for a writ of certiorari”. Let’s explain what that is, and what’s at stake, and why Trump is going to follow up.
- A writ of certiorari orders a lower court to deliver its record in a case so that the higher court may review it. In this case, SCOTUS was being asked to issue a writ against the Supreme Court of Pennsylvania, the highest court in that state.
- A petition [for a writ of certiorari] is a request by a litigant in the lower court, to a higher court, asking the higher court to order the lower court to issue the writ. In this case, the Supreme Court of Pennsylvania had decided against the Republican Party, so the Republican Party petitioned the Supreme Court of the US.
- Petitions can take a long time to resolve. A motion [to expedite consideration of a petition] is a request, by a litigant who has filed a petition, that the higher court accelerate its process of review. In this case, the Republican Party had filed the motion to expedite.
Translated into common English: In Boockvar, the Republican Party sent a request to the US Supreme Court to review a lower court case, and then asked them to hurry up about it. The US Supreme Court declined the motion to expedite, e.g. it refused to hurry up. But – and this is very important – it did not deny the petition for the writ of certiorari.
Thus the situation as it stands is that there is still a petition before the Supreme Court to review the situation in Pennsylvania, it just refused to do so before the election.
Now that raises the question: What’s the situation in Pennsylvania? Let’s work through that.
In 2019, the PA legislature passed a law called Act 77 that permitted all voters to cast their ballots by mail but (in Justice Alito’s words) “unambiguously required that all mailed ballots be received by 8 p.m. on election day.” The exact text is 2019 Pa. Leg. Serv. Act 2019-77, which stated: “No absentee ballot under this subsection shall be counted which is received in the office of the county board of elections later than eight o’clock P.M. on the day of the primary or election.” I agree with Justice Alito: That is unambiguous.
Act 77 also provided that if this portion of the law was invalidated, that much of the rest of Act 77, including its liberalization of mail-in voting, would also be void. The exact text is: “Sections 1, 2, 3, 3.2, 4, 5, 5.1, 6, 7, 8, 9 and 12 of this act are nonseverable. If any provision of this act or its application to any person or circumstance is held invalid, the remaining provisions or applications of this act are void.”
To again put this into common English, the Pennsylvania legislature passed a law that said mail-in ballots had to arrive by 8PM on election day to be counted, and then said that if the Court over-ruled that law, the entire law that permitted mail-in ballots was invalid.
In the face of this clear text, the Pennsylvania Supreme Court, by a vote of four to three, made the following decrees, summarized here by SCOTUS:
- Mailed ballots don’t need to be received by a election day. Instead, ballots can be accepted if they are postmarked on or before election day and are received within three days thereafter. Note that this is directly contravenes the text above.
- A mailed ballot with no postmark, or an illegible postmark, must be regarded as timely if it is received by that same date.
In doing so, PAs’ high court expressly acknowledged that “the statutory provision mandating receipt by election day was unambiguous” and conceded the law was “constitutional,” but still re-wrote the law because it thought it needed to do so in the face of a “natural disaster.” It justified its right to do so under the Free and Equal Elections Cause of the PA State Constitution.
Now, if you are a conservative, you are already angry. You despise this method of jurisprudence, which elite Harvard lawyers might call “living Constitutionalism,” and you believe that judges should enforce laws as written by lawmakers. You believe this case never should have gotten to SCOTUS because what the State Supreme Court did was egregious! .
However, if you’re of a more liberal inclination, you’re probably happy with this outcome. You’re happy because it’ll help Biden win, of course; but in general, you’re likely to be fine with a high court establishing a new right if you think it protects oppressed people from majoritarian tyranny.
If you’re a committed progressive, in fact, you likely will want to dismiss the entire case as just another defeat for outdated textualism in the face of living constitutionalism. It’s easy to frame this case as one of reactionary judges clinging to the letter of the law, while progressive justices overturn the letter of the law to reflect its true spirit. This is the view that CNN and MSNBC are promoting.
Had the Pennsylvania Supreme Court simply ruled that Act 77 was unconstitutional under PA’s Free and Equal Elections clause, this would have been a classic “textualism” vs. “living constitutionalism” case. But it’s not.
There is a strong likelihood that the State Supreme Court decision violates the Federal Constitution. Justice Alito writes: “The provisions of the Federal Constitution conferring on state legislatures, not state courts, the authority to make rules governing federal elections would be meaningless if a state court could override the rules adopted by the legislature simply by claiming that a state constitutional provision gave the courts the authority to make whatever rules it thought appropriate for the conduct of a fair election.”
Justice Alito is referring to the following clauses of the US Constitution:
- Art. I, §4, cl. 1, which states “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”
- Art. II, §1, cl. 2, which states “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.”
Again, translating this into common English, the US Constitution grants state legislators the exclusive right to prescribe the time, place, and manner of holding elections, and to direct the appointment of the electors.
The Pennsylvania Supreme Court didn’t just say “Act 77 is unconstitutional.” It re-wrote Act 77 itself, by judicial fiat, creating new rules for time, place, and manner, of holding elections. In doing so, the State Supreme Court violated the US Federal Constitution.
And that’s the real case here. The US Supreme Court is going to rule that the State Supreme Court violated the US Constitution, the State Supreme Court’s ruling is going to be overturned, and the votes that arrived after 8 PM on election day will be discarded. On that basis, Trump will win Pennsylvania.
UPDATE: Yes, I’m aware of the fact that the Attorney General of Pennsylvania is asserting that the votes arriving after 8PM on election day don’t matter. At the time I wrote this essay, that hadn’t occurred. (In any case, I’m not sure I trust any reporting on this matter. Do you?) Yes, I’m aware that PA might not matter now because of AZ, NV, GA, NC going to Biden. Yes, I’m aware of the fact that my post is conjecture. Of course it’s conjecture. I’m not on the Supreme Court and the events haven’t happened yet. This is my blog where I conjecture about things, hence the name. Since all of the lovely comments (hi, Zero Hedge) are just repeating these same things over and over and over I’m turning off comments. Thanks for tuning in.