Republicans Refile Supreme Court Challenge to Changes in Pennsylvania Voting Rules: Barrett Decision Key

AP Photo/Patrick Semansky


This one is real “inside baseball” legal stuff, but I’m going to do the best I can to make the issues plain.

When the Pennsylvania Legislature refused to amend Pennsylvania election laws in a manner requested by Dem. Gov. Wolf, Democrat interest groups filed suit in Pennsylvania state court seeking the same changes.


The Pennsylvania Supreme Court eventually issued a decision that granted the Plaintiffs some of the relief they had sought.  Most significantly, the Court ordered that mailed ballots did not need to be received by elections officials on November 3 as required by statute, but could be accepted and counted so long as they arrived by November 6 — if they were postmarked on or before Nov. 3. The basis of making the change was that the Pennsylvania state constitution grants the judiciary authority to rewrite state laws to avoid constitutional infirmity.

The Pennsylvania GOP filed a challenge in the Supreme Court — based on a VERY interesting claim that has never been addressed by the Supreme Court.

The US Constitution, Article II. §1, Clause 2 states:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors….

The Pennsylvania GOP is challenging the Pennsylvania Supreme Court’s extension of the ballot receipt deadline on the basis that the plain language of Art. II, Sec.1, cl. 2 states that the manner of selecting electors — which is what each state’s election actually accomplishes — is to be done as determined by the Legislature of each state, not by any court.


If successful, such an outcome would eliminate the ability of state courts to make changes to state election law on the eve of an election.  Whichever party controls a state’s legislature would have control of the election process, independent of the state’s judiciary.

This issue was previously before the Court, but on a 4-4 vote, the Court was unable to act and the decision of the Pennsylvania Supreme Court stood.

But the composition of the Court is about to change.  Judge Amy Coney Barrett could provide a needed fifth vote to invalidate the Pennsylvania court’s decision and establish a new Supreme Court precedent that would cut off many challenges to state election laws.

But there is a twist to this saga even beyond this issue.

Several weeks ago there was a successful challenge in the Supreme Court to a change in South Carolina law eliminating a witness signature requirement.  But the Court stated that ballots already returned without the signature, and any ballots arriving within two days of the order without the signature should still be accepted because they had arrived during the time the lower Court’s order was in effect, and the voters were entitled to rely on valid court orders until they are reversed.   Justices Alito, Gorsuch, and Thomas would have thrown out all the ballots, but Justices Kavanaugh and Roberts voted to allow them.


When the Supreme Court declined to take action a week ago on a 4-4 vote, that validated the Pennsylvania Supreme Court’s decision, and it is good law today.  That raises the issue of the Supreme Court’s Purcell decision — that Courts should not interfere in state election laws close to an election date.  The election is 9 days away.  By the time the Supreme Court might act, it will be only 3-4 days away, with the extended deadline set by the Pennsylvania Supreme Court 6-7 days away.  Would the US Supreme Court alter Pennsylvania election law by moving the ballot deadline day UP by 3 days — potentially impacting voters who might have relied on the 3 day extension in some manner?

if Justice Barrett were to provide a vote to reverse the Pennsylvania Supreme Court, is it possible that Justice Kavanaugh might switch sides under Purcell.  When Justice Barrett is confirmed on Monday, and sworn in that same day, she would immediately be put to the test of whether she should recuse herself in any matters concerning the election.  While I’m sure she has already decided what she is going to do on that issue — I think there is almost no chance she would do that — she would avoid the need to do so if Justice Kavanagh let it be known that he would not — at the 11th hour — join with four others to shorten the time for receiving ballots in Pennsylvania by 3 days when the vote is only 7-8 days away at that point.


The optics of having Justice Barrett, almost immediately after finishing taking the oath, stepping in and providing a fifth vote in favor of the Pennsylvania Republican Party is beyond bad — especially after the Court failed to act last week on the same issue. I would prefer she save that step for an election case of more substance.

I remain convinced that Trump is going to win Pennsylvania by a comfortable margin.



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