In a peremptory decision that should come as no surprise — Senator Ted Cruz’s trumpeting of the case notwithstanding — the Supreme Court has rejected a bid by Pennsylvania Republicans to undo the commonwealth’s certification of President-elect Joe Biden as winner of its 20 electoral votes. As Politico reports, the Court declined to hear the case in a succinct order this afternoon, with no comment and no reported dissent.
As we’ve observed, today is the so-called safe-harbor day, on which the federal government considers state election certifications to be final. The justices apparently saw this case as a loose end that could use tying.
I outlined the Pennsylvania lawsuit here. Senator Cruz is quite right to observe that the Republicans, led by U.S. congressman Mike Kelly of northwestern Pennsylvania, have a point: The commonwealth’s constitution does not appear to authorize no-excuse mail-in voting. Yet the state legislature approved it in 2019 and, with the state’s encouragement during the ongoing pandemic, millions of Pennsylvanians used it in the 2020 election.
Nevertheless, the Pennsylvania supreme court rejected the Republican lawsuit based on the doctrine of laches. The Republicans failed to bring a timely challenge to the use of no-excuse mail-in voting, waiting until after the election to file a suit, which essentially asked the state supreme court to disenfranchise the nearly 7 million Pennsylvanians who voted in the election.
The state supreme court, which is controlled by Democrats (as is the executive branch that administered the election), expanded the use of mail-in voting, so it was nigh-inconceivable that the tribunal was going to hold that this election method violated the state constitution. I also believe the constitutionality issue is not as cut-and-dried as Republicans suggest.
It is true that a provision of the state constitution (art. VII, sec. 14) prescribes a procedure for absentee voting, which is permitted only for approved excuses (e.g., business travel, illness, physical disability, conflict with a religious observance, etc.). It is a rational deduction that if the authors of the constitution took such pains to prescribe the conditions under which voters would be excused from voting in-person, they would not have approved of no-excuse mail-in voting.
There is, however, another potentially relevant provision, Section 4 of the same article. It states (my italics): “All elections by the citizens shall be by ballot or by such other method as may be prescribed by law: Provided, That secrecy in voting be preserved.”
To be clear, I think the better interpretation of the state constitution is that Section 14 states the conditions under which people are relieved of voting in person, and Section 4 addresses the vehicle by which the vote is communicated (by, say, a printed ballot or perhaps a handwritten sheet expressing a preference — as long as it is approved by a legislative enactment and maintains secrecy). But of course, I am not the Pennsylvania supreme court. There should be no doubt that the activist Democrats on that tribunal, who have already endorsed no-excuse mail-in voting, would, if necessary, seize on the text of Section 4 to say that it authorized the state legislature to approve that method for use in an election.
I point this out not because it is right. Indeed, two of the dissenting justices on the state supreme court appeared to believe that the Republicans were right that the constitution does not authorize no-excuse mail-in voting — though they agreed that laches barred the Republicans’ objection at this point. I am simply saying that there was language in the constitution that could have been stretched to support no-excuse mail-in voting. Between that and the well-established laches doctrine, there was no reason to believe the Supreme Court would disturb a ruling by Pennsylvania’s highest court regarding the commonwealth’s constitution.
The U.S. Supreme Court, after all, has thus far ducked important federal constitutional questions raised by the Pennsylvania supreme court’s directives on mail-in voting. If the justices would not decide questions on which they owed the commonwealth’s top court no deference, they were not going to second-guess that court on an interpretation of the commonwealth’s own law.