The State Supreme Court has Violated the US Constitution
If you’ve
been following the mainstream media, you’ve probably read that Trump intends to
file a lawsuit in Pennsylvania to “stop counting votes.” Most likely, this has
been presented as an outrageous evil, unjustifiable by any standards of common
decency, and grossly unconstitutional. Is that really the case? Or is it more
complex than that?
There will be a lawsuit, no
doubt; and it will involve a lot of votes being thrown out. The plaintiff
(Trump and/or the Republicans) will win, because Pennsylvania’s highest court
has almost certainly violated the Constitution of the United States. That’s
why, in the weeks ahead, the Supreme Court of the United States (SCOTUS) is
going to rule in favor of Trump.
Let’s wind the clock back
about a week to explain how we got here.
On October 28, 2020, in Republican Party of Pennsylvania vs. Boockvar,
SCOTUS declined “a motion to expedite consideration of a petition for a writ of
certiorari”. Let’s explain what that is, and what’s at stake, and why Trump is
going to follow up.
1.
A writ
of certiorari orders a lower court to deliver its record in a case so that
the higher court may review it. In this case, SCOTUS was being asked to
issue a writ against the Supreme Court of Pennsylvania, the highest court in
that state.
2.
A
petition [for a writ of certiorari] is a request by a litigant in the lower
court, to a higher court, asking the higher court to order the lower court to
issue the writ. In this case, the Supreme Court of Pennsylvania had decided
against the Republican Party, so the Republican Party petitioned the Supreme
Court of the US.
3.
Petitions
can take a long time to resolve. A motion [to expedite consideration of a
petition] is a request, by a litigant who has filed a petition, that the higher
court accelerate its process of review. In this case, the Republican Party had
filed the motion to expedite.
Translated into common
English: In Boockvar, the Republican Party sent a request to the
US Supreme Court to review a lower court case, and then asked them to hurry up
about it. The US Supreme Court declined the motion to expedite, e.g. it refused
to hurry up. But - and this is very important - it did not deny
the petition for the writ of certiorari.
Thus the situation as it
stands is that there is still a petition before the Supreme Court to review the
situation in Pennsylvania, it just refused to do so before the election.
Now that raises the question:
What’s the situation in Pennsylvania? Let’s work through that.
In 2019, the PA legislature
passed a law called Act 77 that permitted all voters to cast their ballots by
mail but (in Justice Alito’s words) “unambiguously required that all mailed
ballots be received by 8 p.m. on election day.” The exact text is 2019 Pa. Leg. Serv. Act 2019-77, which stated:
“No absentee ballot under this subsection shall be counted which is received in
the office of the county board of elections later than eight o'clock P.M. on
the day of the primary or election.” I agree with Justice Alito: That is
unambiguous.
Act 77 also provided that if
this portion of the law was invalidated, that much of the rest of Act 77,
including its liberalization of mail-in voting, would also be void. The exact
text is: “Sections 1, 2, 3, 3.2, 4, 5, 5.1, 6, 7, 8, 9 and 12 of this act are
nonseverable. If any provision of this act or its application to any person or
circumstance is held invalid, the remaining provisions or applications of this
act are void.”
To again put this into common
English, the Pennsylvania legislature passed a law that said mail-in ballots
had to arrive by 8PM on election day to be counted, and then said that if the
Court over-ruled that law, the entire law that permitted mail-in ballots was
invalid.
In the face of this clear
text, the Pennsylvania Supreme Court, by a vote of four to three, made the
following decrees, summarized here by SCOTUS:
1.
Mailed
ballots don’t need to be received by a election day. Instead, ballots can be
accepted if they are postmarked on or before election day and are received
within three days thereafter. Note that this is directly contravenes
the text above.
2.
A
mailed ballot with no postmark, or an illegible postmark, must be regarded as
timely if it is received by that same date.
In doing so, PAs’ high court
expressly acknowledged that “the statutory provision mandating receipt by
election day was unambiguous” and conceded the law was “constitutional,” but still
re-wrote the law because it thought it needed to do so in the face of
a “natural disaster.” It justified its right to do so under the Free and Equal
Elections Cause of the PA State Constitution.
Now, if you are a
conservative, you are already angry. You despise this method of jurisprudence,
which elite Harvard lawyers might call “living Constitutionalism,” and you
believe that judges should enforce laws as written by lawmakers. You believe
this case never should have gotten to SCOTUS because what the State Supreme
Court did was egregious! .
However, if you’re of a more
liberal inclination, you’re probably happy with this outcome. You’re happy
because it’ll help Biden win, of course; but in general, you’re likely to be
fine with a high court establishing a new right if you think it protects
oppressed people from majoritarian tyranny.
If you’re a committed
progressive, in fact, you likely will want to dismiss the entire case as just
another defeat for outdated textualism in the face of living constitutionalism.
It’s easy to frame this case as one of reactionary judges clinging to the
letter of the law, while progressive justices overturn the letter of the law to
reflect its true spirit. This is the view that CNN and MSNBC are promoting.
Had the Pennsylvania Supreme
Court simply ruled that Act 77 was unconstitutional under PA’s Free and Equal
Elections clause, this would have been a classic “textualism” vs. “living
constitutionalism” case. But it’s not.
There is a strong likelihood
that the State Supreme Court decision violates the Federal Constitution.
Justice Alito writes: “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.”
Justice Alito is referring to
the following clauses of the US Constitution:
·
Art.
I, §4, cl. 1, which states “The Times, Places and Manner of holding Elections
for Senators and Representatives, shall be prescribed in each State by the
Legislature thereof.”
·
Art.
II, §1, cl. 2, which states “Each State shall appoint, in such Manner as the
Legislature thereof may direct, a Number of Electors, equal to the whole Number
of Senators and Representatives to which the State may be entitled in the
Congress: but no Senator or Representative, or Person holding an Office of
Trust or Profit under the United States, shall be appointed an Elector.”
Again, translating this into
common English, the US Constitution grants state legislators the exclusive
right to prescribe the time, place, and manner of holding elections,
and to direct the appointment of the electors.
The Pennsylvania Supreme
Court didn’t just say “Act 77 is unconstitutional.” It re-wrote Act 77 itself,
by judicial fiat, creating new rules for time, place, and manner, of holding
elections. In doing so, the State Supreme Court violated the US Federal
Constitution.
And that’s the
real case here. The US Supreme Court is going to rule that the State Supreme
Court violated the US Constitution, the State Supreme Court’s ruling is going
to be overturned, and the votes that arrived after 8 PM on election day will be
discarded. On that basis, Trump will win Pennsylvania.
https://macris.substack.com/p/why-trump-will-triumph-in-pa-litigation
