An Election Law Win (If Only Temporary) in Pennsylvania

States administer federal elections under the U.S. Constitution. A state Supreme Court interpretation of its own state constitution is entitled to due deference from the federal courts. These two principles should have made this case a no-brainer, but four conservative justices on the U.S. Supreme Court demonstrated that they are willing to disregard these principles.

Ian Milhiser at Vox explains, Democrats are cheering a Supreme Court ruling on mail-in ballots. Here’s why it’s worse than it looks.

The Supreme Court handed down a brief, unsigned order on Monday, which effectively rejected radical arguments by the Republican Party of Pennsylvania that sought to make it harder to vote in that state. This order, in other words, is a victory for voting rights — but that victory may only last a matter of days.

Republican Party of Pennsylvania v. Boockvar involves a state Supreme Court order holding that many ballots received up to three days after Election Day must be counted. Monday’s order means that this state Supreme Court decision will stand, for now.

The Court’s decision not to grant relief to the GOP in Republican Party is not especially surprising. What is surprising is the vote breakdown in this case. The Court voted 4-4, with Chief Justice John Roberts crossing over to vote with the three liberal justices.

So in the almost certain event that Trump Supreme Court nominee Amy Coney Barrett is confirmed to join the Supreme Court, there could be five votes on the Supreme Court who support the GOP’s effort to toss out many ballots in the state of Pennsylvania. Indeed, it is possible that Republicans will attempt to raise the same issue before the justices after Barrett is confirmed.

The dissenting justices did not explain why they dissented

The Supreme Court’s order in Republican Party is only two sentences long. The first sentence states that the GOP’s request to stay the state Supreme Court decision is denied. The second merely states that “Justice Thomas, Justice Alito, Justice Gorsuch, and Justice Kavanaugh would grant the application.” None of the four justices in dissent explained why they dissented.

In its brief asking the Supreme Court to block the state court’s decision, however, the GOP advanced two legally dubious theories.

The first is that a federal law providing that the election shall take place “on the Tuesday next after the first Monday in November.” Republicans argue that federal law requires “the 2020 general election to be consummated on Election Day (November 3, 2020).” So any ballots that may have been mailed after this date must be tossed.

One serious problem with this argument, however, is that the provisions of federal law setting an election date should not be enforceable in federal court. As I’ve previously explained, private parties are only allowed to bring a lawsuit seeking to enforce a federal statute if that statute contains particular language. And the federal law setting the date of the election does not contain such language.

The GOP’s other argument is potentially breathtaking in its implications. The Constitution provides that “each State shall appoint, in such Manner as the Legislature thereof may direct,” members of the Electoral College. In their brief, the GOP hones in on the word “Legislature,” arguing that only the Pennsylvania state legislature may set the state’s rules for choosing presidential electors — not the state Supreme Court.

But there’s a glaring problem with this argument. As the Supreme Court held in Marbury v. Madison (1803), “it is emphatically the province and duty of the Judicial Department to say what the law is.” In Republican Party, two parties had a disagreement about what Pennsylvania law says about how ballots should be counted. Ultimately, the state supreme court resolved that disagreement in a manner that the GOP disagrees with.

The GOP argues in its brief that the state Supreme Court’s decision relied on reasoning that is “tortured at best.” But so what? There was a disagreement between two parties. Someone had to resolve that dispute. And, in questions of state law, the state Supreme Court is supposed to be the final word on such disputes.

One of the most basic principles of American law is that the Supreme Court of the United States has the final word on questions of federal law, but state supreme courts have the final word on how to interpret the law of their own state.

Indeed, if state supreme courts cannot interpret their state’s own election law, it’s unclear how that law is supposed to function. There will inevitably be legal disagreements between candidates, parties, and election officials during an election. Perhaps the Democratic Party believes that a particular ballot should be counted, and the Republican Party disagrees.

But someone has to have the power to resolve such disagreements, and, in this country, disputes about the proper meaning of an existing law are resolved by the judiciary. If the judiciary cannot perform this function, we have no way of knowing what the law is — and we may have no way of knowing who won a disputed election.

In any event, because the four dissenting justices did not explain their reasoning, we do not know whether they voted with the GOP because they were moved by one or both of the GOP’s arguments — or maybe because they came up with their own reason to back their own political party in this case.

What we do know is that four plus one equals five. Thus, in the likely event that Judge Barrett becomes Justice Barrett, there will probably be a majority on the Supreme Court to hand a victory to the GOP in cases like this one.

Indeed, the GOP may be able to raise this issue again after Barrett is confirmed, potentially securing a Court order requiring states like Pennsylvania to toss out an unknown number of ballots that arrive after Election Day. If the election is close, that could be enough to change the result.

Before you praise Chief Justice John Roberts for creating a tie vote by siding with the “liberal” justices in this case, remember that he has spent his entire legal career as the point man for GOP voter suppression. This case be back before the court after Amy Coney Barrett joins the court, and Roberts could easily join a 6-3 majority.

Election law expert Richard Pildes explains at CNN, John Roberts put the country before politics:

In the most important pre-election case this year, Chief Justice John Roberts once again appears to have decided that, for the Supreme Court, discretion is the better part of valor.

After sitting for a remarkable several weeks on a Pennsylvania election-law case — the longest the Court has taken with any election case this year — the Court in the end chose to say nothing at all. Instead, it simply released a 4-4 order rejecting the Republican Party’s effort to overturn a decision of the Pennsylvania Supreme Court, a decision that permits absentee ballots to be counted even if received three days after Election Day.

The Court’s silence here is exceptionally wise. Often when divided 4-4, the justices do not write, but, at times, at least some of them do. Why did Chief Justice Roberts and the justices who voted with him not explain their reasons? Why did the other conservative justices, in dissent, not speak either? The reason, paradoxically, is likely precisely because the stakes were too high to say anything at all; the issues are too momentous; the election too imminent.

This case has a clear link to Bush v. Gore: It centered on an issue that Bush v. Gore had addressed but not fully resolved. That is almost certainly why the Court spent so long trying to figure out how to handle the case. And also why Roberts might have suppressed his probable agreement with the dissenters: to preclude the Court from deciding such consequential issues, implicitly or explicitly, on the eve of the election.

The monumental issue in the case was what the word “legislature” means in the Constitution. That might sound simple, but the answer has ramifications that reverberate throughout the Constitution. That’s because the term “legislature” appears in the Constitution 17 times. Each time it does, the legal question is whether “legislature” is best understood to mean (1) the ordinary lawmaking processes of a state or (2) only the formal institution of the legislature itself. That is a fundamental question of political power and who has it.

If the Constitution gives these powers to the formal institution of the legislature alone, that means state legislatures would be free of many of the normal constraints when they exercise these unique powers the Constitution assigns them. And these powers are central to control over the democratic process. The Constitution, for example, gives the state “legislature” the power to regulate national elections. It also gives the “legislature” the power to decide how to structure presidential elections. The question the Pennsylvania case posed is exactly how much power legislatures have to do that.

State constitutions normally, of course, limit a legislature. Suppose, though, a state constitution requires seven days of early voting in national elections. Yet, if only “the legislature” can regulate national elections, the state constitution would be of no effect; a legislature that preferred a different number of days of early voting would be free to impose that policy.

This was the claim of the Republican Party in Pennsylvania. The state’s election code as enacted by the legislature requires absentee ballots to be received by 8 p.m. on election night. But the state court held that in these unusual times the state constitution required that deadline to be pushed back three days. If only “the legislature” can regulate the presidential process, as the Republican Party claimed, the legislatively-chosen deadline of election night would have to prevail.

Here’s another example, from a case the Court has decided already. Arizona, like many states, permits voters to enact state law through what’s known as direct democracy. Through that process, voters in Arizona created an independent commission to draw congressional districts, rather than have the state legislature do so.

But the Constitution gives the “legislature” the power to regulate congressional elections. If that means the lawmaking process of the state, as the state defines it, then voters can regulate these elections, including by requiring that commissions draw districts. But if it means only the formal institution of the legislature, then voters have no power over these issues.

In a 5-4 decision that Justice Ruth Bader Ginsburg wrote five years ago, the Court held that “legislature” means the general lawmaking process of a state. That meant a state can give voters the power to regulate national elections. But who wrote the impassioned, vehement, lengthy dissent for four Justices, arguing that “legislature” means just the institution? Roberts.

That is why he almost certainly believes, as a matter of first principle, that “legislature” means the institution, nothing more. And that belief would have led him to a 5-3 decision blocking the Pennsylvania Supreme Court decision and re-imposing the legislature’s election night deadline for absentee ballots.

But a 5-3 decision doing that would have led Biden supporters to believe the conservative majority was aligning with the Republican Party, for partisan reasons, in favor of restrictive absentee ballot rules — in a critical swing state like Pennsylvania. On top of that, the Court might well have felt obligated to explain its reasons for such a significant action. That would have required the Court to resolve the meaning of “legislature,” with all the implications doing so would entail.

In suppressing his almost certain view about the proper meaning of the Constitution, Roberts chose to let these issues, like sleeping dogs, lie — at least for now. A 4-4 decision says nothing. It settles nothing. Surely a tough vote for the Chief Justice, but exactly the right call, on the eve of an election that is roiling the country like few others.

Election Law exert Rick Hasen in an interview with John King makes a similar argument as Ian Milhiser that this case could be back before the court after Amy Coney Barrett joins the court.