The U.S. Supreme Court just left in place, for the second time so far, a decision by the Pennsylvania supreme court that threw out part of the election law passed by the lawmakers of Pennsylvania, and substituted instead rules written by judges. The Pennsylvania decision, issued on a party-line vote by the elected Democrats who constitute the Pennsylvania court’s majority, used the open-ended guarantees of “free and equal” elections and “free exercise of the right of suffrage” to invalidate the legislature’s deadline for mail-in ballots to be received by 8 p.m. Election Day — the same time the in-person polls close. Worse, defying basic principles of interpreting statutes, the Pennsylvania court not only rejected the deadline, but disregarded the explicit instruction by the Pennsylvania legislature — in Act 77, a law signed by the state’s Democratic governor in 2019 — that if any part of the carefully crafted bipartisan compromise was invalidated, the entire thing (including its provisions for mail-in voting) had to be invalidated. Basically, the Pennsylvania court ruled that Democrats could keep part of a legislative deal they liked, while disregarding the rest. There was clear evidence, moreover, that the Pennsylvania legislature wanted the deadline to apply even after the COVID pandemic, as a new law was passed this year during the pandemic — and again, signed by Governor Tom Wolf, a Democrat — making several accommodations to aspects of the election law in light of the pandemic, but not changing the mail-in deadline. The Pennsylvania court claimed that an extension was needed because of Postal Service delays and experience from the state’s primary in the spring, although the court went out of its way to decide this on a record that ignored evidence compiled in a companion case that demonstrated that no extension was necessary.
Whatever deadlines should be, this much should be clear: If courts are going to change the rules, the rules need to be settled before Election Day, before voters rely on them, and before the judges deciding a case know who is winning or who needs what outcomes in order to win the election. That was the point Andy McCarthy made about why the Supreme Court should have taken this case now, even if it was going to rule in the Democrats’ favor, rather than wait until after the election. Chief Justice John Roberts and Justice Brett Kavanaugh clearly agree in principle, because on Monday they ruled in favor of striking down a similar bit of mischief by a federal judge in Wisconsin. But today’s ruling was different: Roberts and Kavanaugh sided with the Court’s three liberals in refusing, for the second time, to hear the Pennsylvania case now. They did not turn away the Pennsylvania Republican Party’s petition, but they refused to expedite its consideration. Justice Amy Coney Barrett did not participate in the ruling, but most likely that is because the request for expedited consideration was already under the Court’s review before she was confirmed. Her addition to the Court could add the necessary fourth vote to at least get the case heard, but only at the worst possible time.
Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch, dissented from today’s denial of the extension, which means that either the Pennsylvania court will get away with rewriting the law, or that the case will come back to the Supreme Court after the election — and that will only happen if the whole presidential election (or a House race) depends on Pennsylvania’s late-mailed votes. Pennsylvania Republicans challenged the ruling on two federal-law grounds: that it violated federal statutes setting a uniform national Election Day, and that it violated Article II, Section 1 of the Constitution, which expressly places the power over presidential election law in the hands of the state legislature. Article II, Section 1 — like its companion for House elections, Article I, Section 4 — is distinct from most parts of the Constitution in placing a state power not in a state in general, but in one particular organ of the state: the legislature. In 2000, the Supreme Court emphasized this distinction:
As a general rule, this Court defers to a state court’s interpretation of a state statute. But in the case of a law enacted by a state legislature applicable not only to elections to state offices, but also to the selection of Presidential electors, the legislature is not acting solely under the authority given it by the people of the State, but by virtue of a direct grant of authority made under [Article II, Section 1].
That is not from the 5–4 opinion in Bush v. Gore, but from the Court’s unanimous 2000 opinion in Bush v. Palm Beach County Canvassing Bd, which vacated the original Florida Supreme Court decision in the recount fight because it appeared that the state court had “construed the Florida Election Code without regard to the extent to which the Florida Constitution could, consistent with Art. II, § 1, cl. 2, ‘circumscribe the legislative power.'” The Court in 2000 drew that rule from an 1892 decision upholding the Michigan legislature’s decision to split the state into districts for Electoral College purposes, although only three Justices (Thomas, Antonin Scalia, and Chief Justice William Rehnquist) were ultimately willing to rule in the later Bush v. Gore decision that the subsequent Florida Supreme Court decision had violated Article II. It is possible, though at this writing they have issued no opinion of their own, that Roberts and Kavanaugh are less convinced of the Article II argument, or just generally less willing to insert the Court into a dispute between a state legislature and a state court.
The question is squarely presented. The Pennsylvania court made no pretense that it was interpreting what the state legislature did, and neither did it find that the Pennsylvania statute violated the state constitution on its face; the 4–3 majority just thought that under the circumstances, the law should be different from what the legislature enacted and the governor signed. Under Palm Beach County, this creates an obvious problem. Justice Alito called out the irresponsibility of letting this stand:
It would be highly desirable to issue a ruling on the constitutionality of the State Supreme Court’s decision before the election. That question has national importance, and there is a strong likelihood that the State Supreme Court decision violates the Federal Constitution. 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.
Alito pointedly noted that the Pennsylvania attorney general has ordered that late-arriving ballots be segregated while the Court decides whether to hear the case after the election. It should, if it is not moot by then. But it would have been far better to hear it now.