The Pennsylvania Supreme Court ruled that postal ballot papers received within three days of election day will be counted and believed to have been dispatched on time. The state constitution interprets this decision to mean that a state law is invalid, according to which postal ballot papers must be received by election day.
On the contrary, the Pennsylvania Republicans argue that the legal deadline is authoritative, since the US Constitution gives lawmakers the power to determine how votes are counted for the president – without being limited by the state constitution.
So far the US Supreme Court has declined to get involved. It denied the Pennsylvania Republicans’ motions (1) to stay the state court sentence (4-4 before Judge Amy Coney Barrett was upheld) and (2) to expedite their petition for Certiorari (with Barrett not confirmed) Participation because she did not have time to review the application).
On Friday, the Pennsylvania Republicans renewed their residency application in a slightly different form. They applied for an interim injunction, according to which the district procurement authorities (1) separate the late-arriving ballots and (2) do not have to count them.
The Republican injunction states that 25 billboards may not separate the ballot papers. The Secretary of State of Pennsylvania has issued “guidelines” that they should, and a majority of the bodies have said they will follow those guidelines. No board has indicated that it will not be compliant. But the Republicans suggested in their motion that 25 of the boards didn’t say either way.
Judge Samuel Alito, who handles emergency requests from the geographic area including Pennsylvania, essentially issued an administrative order that granted the former – not the latter – until the court could rule on the request. Alito instructed that responses to the application should be submitted on Saturday afternoon.
For the reasons I cite below, I think the entire court needs to be extremely careful (even in part) before approving the application. But I would first like to establish a few premises to assume that there are reasons the court would want to grant this.
I expect a majority in court would approve of the Republicans on the matter and overturn the Pennsylvania Supreme Court – that is, they would consider the federal constitution to enforce the legal deadline for receiving postal ballot papers. Four judges have emphatically indicated that they will agree with this view if they deviate from the rejection of the residence application. I assume Barrett would agree, as would Chief Justice John Roberts (who voted against the stay) if he had earned the merits.
I also assume that the court did not rule against a review of the matter. Instead, she has so far refused to get involved, as this may not affect the election result. Given the current number of votes, it is extremely unlikely that the late-arriving ballots will matter. However, should this turn out to be incorrect, a majority in the Court would grant Certiorari and reverse it.
I also assume that the court wants to make sure that it can make this decision effectively. This is only possible if the late arriving ballot papers are kept separately identifiable.
Despite all of these assumptions in support of the motion, I think the court of law must be extremely careful in granting it. The reason is that the court is essentially being used by opposing political forces for their own purposes. And it’s done in a way that makes the stake much higher than just keeping a few ballot papers in separately labeled tubs.
If the court acts without detailed opinions, especially in an emergency, the subtleties are lost to the general public. An injunction order in relation to certain ballot papers is inevitably read as a statement that the court sees a grave error in the electoral process. And a decision by a court that is ideologically divided is inevitably understood to mean that the judges were merely enforcing their own political preferences.
If the court issues an injunction, the President and his supporters will use that order as part of an effort to delegitimize the election. Democrats will use it to delegitimize the court itself.
If an injunction is really necessary, it is simply the cost of our legal system. The fact that a necessary judgment of the court may be misinterpreted is not an excuse not to make it. The court cannot be held hostage by strategies of manipulating public opinion.
But despite all the assumptions I have made above, it does not seem necessary to issue an injunction here for several reasons. First, these voices are extremely unlikely to make any difference. The election was scheduled. In return, the court is very unlikely to hear the appeal against the Pennsylvania Supreme Court decision.
Second, the Pennsylvania Republicans provide an inadequate premise for a restraining order: there is no evidence that a billboard does not already separate late-arriving ballots.
Third, Republicans have another avenue for relief. You can ask the state courts. It is important that the state courts can find out whether there are bodies that do not actually separate these ballots. If so, which seems unlikely, they can decide the unresolved threshold question of whether state law requires the bodies to follow the instructions of the State Secretary. The state courts could also issue an order requiring the separation of ballots, as four judges have indicated that they would grant certiorari.
Indeed, the overwhelming practice of the court is to require a party seeking an injunction such as an injunction to seek relief first in the lower courts. But that didn’t happen here. The Pennsylvania Supreme Court denied the suspension of its decision, but the details of the injunction sought by the Republicans are different. And it remains unclear whether an injunction is even necessary.
With all this and the high stakes in the public’s perception of the court, there seems to be a better way to address serious Republican concerns about late-arriving ballots. The court may leave the administrative stay for one day to give Republicans time to go to state court and otherwise deny it unscathed. Anything else is likely to be caricatured for the general public as it questions the election and is a partisan game in support of the president.
Tom Goldstein, The Pennsylvania Injury Application Dilemma,
SCOTUSblog (Nov 7, 2020 1:32 pm), https://www.scotusblog.com/2020/11/the-dilemma-of-the-pennsylvania-injunction-request/