Is There Another Scenario That Makes Justice Alito's Dec. 9 Response Date Meaningful in Different Way?

AP Photo/J. Scott Applewhite

I’ve spent some time reading comments to this story I wrote yesterday as well as many other legal analysts’ views on what — if anything — can be divined from the fact that Justice Samuel Alito ordered the State of Pennsylvania and other defendants to respond by December 9 to the action filed by GOP Congressman Mike Kelly seeking to declare unlawful the “no excuse” mail-in voting scheme used in the November election.

In my story yesterday I noted that the due date for the opposition papers is one day after the last day on which the Pennsylvania electors could be named based on the election results as certified by the Secretary of the Commonwealth and that there is currently no court order which prevents that from happening.  As some have noted, the end of the “safe harbor” period — December 8 — is simply a date established by Congress by which a state benefits if all election disputes are settled and the outcome is certified by the state at least six days prior to the meeting of the Electoral College.  The states are not required to meet this deadline, it only provides that certain challenges to a state’s naming of electors will not be entertained if the state does meet the deadline.

What many have correctly noted is that this “safe harbor” provision has no legal effect on what the Supreme Court can do if it were to find merit in any election challenge it chooses to hear.  Until the Electoral College actually meets and votes, the Court possesses the authority to issue an injunction preventing the electors from any particular state from being able to lawfully participate on the basis that the manner of their selection was legally invalid.

The Court itself gave this “safe harbor” provision notoriety in Bush v. Gore when it used the statute as a basis to not send the matter back to the Supreme Court of Florida so that Court could address the flaws in the statewide “recount” that it had ordered to take place.  The lack of consistent statewide standards for executing that recount was the basis upon which the US Supreme Court halted the Florida Court-ordered recount.

The US Supreme Court blocked the recount from resuming with reformulated standards because the Court issued its decision on the last day of the “Safe Harbor” period, and the Court found that the Florida Legislature had expressed an intention to take advantage of that provision in the Florida election statute.  As such, there was no time for the Florida Supreme Court to remedy its errors — even though the Electoral College meeting was still a week away.  Many legal commentators at the time decried that justification as simply an excuse put forward by the US Supreme Court to stop any further recount from taking place in Florida that might again switch the outcome of the race.

Given the actual purpose of the Dec. 8 “safe harbor” deadline, the fact that Justice Alito has set the date for the opposition papers to be filed as of December 9 is “noteworthy” but not necessarily impactful on what the Court can still do.

Most of the legal pundits on the left have been dismissive of the claims made in the lawsuit brought by Kelly and predicted that the matter would be summarily dismissed.  They all conflate the extreme nature of the remedy sought with the underlying merits of the case as their reason for rejecting the merits.  I have yet to find a meaningful argument advanced in opposition to Kelly’s claims on the merits — the opposition seems only to focus on the prospect of  “disenfranchising” millions of voters who cast votes in a manner that they understood to be lawful based on what they were told by the state and county officials.

Other than remaining “hopeful” in a metaphysical sense, is there anything that might be read into the fact that Justice Alito seems to have given the state defendants an inordinately long amount of time to respond to an Emergency Application for an injunction under the circumstances?

Maybe it’s to give the Court more time.

Maybe it’s to lay the groundwork for use of a “MOAB” (“Mother of all Bombs”) remedy with respect to Pennsylvania. While it might be “shocking” to the political system in 2020, it might also be the “electro-shock paddles to the chest” that the political branches need to shake themselves out of their current descent into open warfare with respect to the ground rules for conducting elections.

This supposition begins with the premise that inside SCOTUS there is a view that the Pennsylvania Supreme Court has made itself into little more than an extension of the partisan political machine run by the Pennsylvania Democrat Party in the large metropolitan areas of the state. Its only judicial philosophy seems to be to promote the positions advanced by Democrats and defeat the positions advanced by Republicans.  In 2020 this partisanship crossed over into the realm of how elections are conducted and threatens to eliminate the possibility of fair electoral outcomes in a state with a closely divided electorate.

How should the US Supreme Court respond to a State Supreme Court that has allowed itself to become captured by political interests — a state that elects the members of the Court, which means that by manipulating the election process the Court’s composition in favor of one political party will become a self-perpetuating reality.

One way to do that would be to “discipline” the electorate of the state and make them recognize what has been done in their name.

Professor William Jacobson who created the Legal Insurrection blog (highly recommended by me) made an interesting comment yesterday in taking a contrarian view on Justice Alito’s Dec. 9 deadline.  He noted that Justice Alito and the Court do not need the briefing from state defendants to respond to the request for injunctive relief made by the Plaintiffs in the Kelly case.  These kinds of applications are made to the Court by the dozens throughout the year, and nearly all of them are denied because of the very small likelihood of the Court taking the case to which they are attached, and the lower court decision is going to stand.

If Justice Alito was intending to not take any meaningful action here that might impact the election results he could have simply denied the emergency application, noting that it was not a decision on the merits, and the Plaintiffs were free to file a petition for review in the ordinary course — they just would not get the retrospective relief they were seeking as the election would likely be settled before the Court would act on such a petition.

By not doing so, Justice Alito has left open the possibility that the Court could act in some fashion prior to the meeting of the Electoral College.

A second aspect of Prof. Jacobson’s comment yesterday was to point out the fact that the Court does not need the benefit of enlightenment by the parties’ counsel on the questions presented.  The Justices of the Court, their law clerks, and legal staff of the Court are more than capable of analyzing all aspects of the legal issues raised by the Kelly complaint, and the Penn. Supreme Court’s resort to using the doctrine of “laches” to avoid dealing with the complaint on the merits. The Penn. Supreme Court did them a favor by preventing any “record” to be created in the lower state courts which would require review by the Supreme Court.  By acting as it did, the Penn. Supreme Court has limited the needed review to the question of the constitutionality of Act 77, and the application of the doctrine of “laches” to dismiss the action.

It is almost certain that Justice Alito knows exactly what the outcome of a vote of the full court will be on the Emergency Application if it was publicly announced today.

The Court has the authority to treat the Emergency Application as a “petition for certiorari” — a request for a determination of the matter on the merits rather than just a request for injunctive relief — and issue an Order upholding or reversing the decision of the Penn. Supreme Court. If such a circumstance exists, where there is a sentiment among a majority of the Court to determine the Kelly case on the merits, it would be imperative to allow the opposing side to brief the issues — and to not give them 24-48 hours to do so.  This would explain why Justice Alito gave the state defendants one week to submit their opposition.  Given the nature of the issues and the limited record below, a week is far more time than is necessary for such work to be performed.

The opposition is likely meaningless in the sense that the Justices already know what their views are on the issues, but “notice and opportunity to be heard” are the foundations of “due process”.  By giving the state until Dec. 9 to respond, Justice Alito has cut off a “notice and opportunity” complaint from the state defendants.

If that is where the outcome is headed, we then have the question of which Justice would be responsible for writing an opinion for the majority.  If the Chief Justice voted with the majority, he would decide who writes the opinion.  If the Chief Justice were to vote with the minority — which based on his recent comments seems likely — and Justice Thomas is in the majority, then Justice Thomas would decide who would write the opinion.

Has there ever been a Justice of the Supreme Court with more cause to castigate the political parties and various political branches of the federal and state governments for their politicization of the judiciary?  Is the Pennsylvania Supreme Court and its conduct not the epitome of the politicization of the judiciary?

I can certainly envision this as the moment in history where Justice Thomas stepped forward to say “Enough!”

What might that look like?  What outcome could five (or more) Justices impose on the country in order for the populace to wake up and recognize the path we are on with our election processes having been turned into battlegrounds themselves?

I’m not 100% certain in how this would play out beyond a Court decision — maybe that will be my next research project — but let’s suppose that the Court rules in favor of the Kelly Plaintiffs on the merits, and invalidates the “no excuse” mail-in voting scheme imposed on the Pennsylvania electorate without their consent as is required under the Pennsylvania State Constitution.  What remedy other than simply declaring the 2.3 million mailed-in votes invalid might the Court impose?  That would be a “naked” decision by 5 or more Justices to change the winner of Pennsylvania’s 20 electoral votes — a step I think the Court would be highly reluctant to take, as history would always reflect that it was the Court who chose the winner through its jurisprudence.

But, something I think the Court could bring itself to do is to simply declare the Pennsylvania contest voided — and to do so at such a time that prevents Pennsylvania from naming any electors to the Electoral College.  That would shut the state out of the 2020 process of electing the next President.

This would be justified by the simple fact that the Pennsylvania General Assembly and the elected officials of the Pennsylvania State Government are all to blame for the manner in which the election was conducted.  They violated the rights of all Pennsylvania electors who were entitled to vote on the Constitutional Amendment adopting “no excuse” mail-in voting by imposing that scheme through Act 77 in violation of the Constitution.

It might seem incongruent to “punish” the Nov. 2020 electorate on the basis that the same electorate’s rights were violated by the Legislature and state officials, but the fact of the matter is that all those officials acted in the name of the electorate because they were all put in the position by the electorate that sent them to office in the first place.

Basically, the Legislature and state officials are all “your rascals” so “you” — Pennsylvania — are responsible for the misdeeds they have committed in your name.  The original misdeed in this instance was implementing Act 77 in violation of the State’s Constitution, and everything that came after that is tainted as a result.

As I said, preventing Pennsylvania from naming electors and being involved in the 2020 Electoral College, is the MOAB of all outcomes.  But it does not put the Court in the position of “selecting” a winner in Pennsylvania, and it places responsibility where it belongs. It is then up to the People of Pennsylvania to decide how to respond to the Legislature and State Officials who caused the mess.

That would be a lesson the remaining 49 states could greatly benefit from.