The Trump campaign won a minor victory today in the multifaceted post-election litigation ongoing in Pennsylvania. A state court ruled that the state government lacked the authority to extend by three days (i.e., until today, November 12) the statutory six-day post-election deadline for voters to verify proof of identification. Consequently, if these voters did not verify their identification by November 9, their votes may not be counted.
The decision by President Judge Mary Hannah Leavitt of the Commonwealth Court is expected to affect very few votes. As I write this, presumptive President-elect Biden leads President Trump by about 55,000 votes in Pennsylvania.
The decision has no bearing on the more notable controversy currently pending before the U.S. Supreme Court — viz., whether Pennsylvania’s state supreme court had the authority to extend by three days (i.e., until November 6) the statutory deadline for mail-in ballots to be received by county election boards. While the state Republican Party has asked the high court to review that state court ruling, the Supreme Court has not decided whether to take the case, though Justice Alito (the justice who handles emergency applications in the Third Circuit, which includes Pennsylvania) has ordered that the late-arriving votes (estimated to number about 10,000) be segregated.
Today’s ruling is yet another indication of how dismissive Pennsylvania’s Democratic-controlled government has been of the principle that the Constitution empowers state legislatures, not courts or bureaucrats, to set the rules for elections. The issue of voter identification was not addressed in the state supreme court’s much-disputed rewrite of Pennsylvania statutory law. Yet, Secretary of State Kathy Boockvar assumed that the judicially crafted three-day extension for receiving ballots should result in a corresponding three-day extension for verifying voter identity. On November 1, Boockvar issued guidance to that effect to the state’s 67 county election boards.
Judge Leavitt did not address the question about state court authority pending before the U.S. Supreme Court. Indeed, she indicated that the state supreme court could have extended the identification deadline by “amending” its decision to include it. Obviously, as a lower court judge, Leavitt is bound by the state supreme court’s dubious ruling that it has authority to alter state election law.
As I observed in Tuesday’s column, even if the Trump campaign were to prevail on the legal challenges to the state supreme court’s three-day extension, it could not void nearly enough votes to threaten Biden’s victory in the state. To do that, Trump would have to win its federal lawsuit challenging nearly 700,000 votes cast in Philadelphia and Pittsburgh. That challenge is uphill, to put it mildly. The president has no realistic chance of reversing the overall outcome of the election unless he reverses the outcome in Pennsylvania — and even then, he’d also need to reverse it in at least two other states.