By John M. Reeves
Last Friday evening, in the midst of the media frenzy over the Presidential election, Justice Alito issued a short, page-and-a-half order to all Pennsylvania county boards of election. The order directs the county boards, in counting ballots, to separate any and all ballots received by mail after November 3 at 8:00 pm from those received before that time. Most legal commentators minimized the significance of Alito’s order, declaring it to be no big deal. In fact, though, the order is part of a major lawsuit currently pending before the Supreme Court, the outcome of which could have serious consequences for election law across the country regardless of whether it practically impacts the results of the Presidential election. As such, it is to be hoped that the Court will agree to hear the case in full.
This article is the first of a two-part series. Here, we will examine the underlying legal issues and the factual background of the case. The second article will clarify for the general public the complex procedural matters that have taken place in the case.
Background to Election Law Under the Constitution
The lawsuit, Republican Party of Pennsylvania v. Kathy Boockvar, et al., presents the question of whether, under the United States Constitution and federal law, state courts can overturn the express enactments of state legislatures regarding the time, place, and manner of holding Presidential elections. The Constitution vests the state legislatures with the authority to do this and mentions nothing about state courts. The federal Congress, in turn, is vested with the authority to pass a law mandating that all states hold the voting for President on the same day throughout the country. For a major part of our country’s history, Congress declined to exercise this power. As difficult as it is to believe in this day and age, there was a time when different states held their elections for President on different days. But Congress eventually streamlined the election process by passing legislation mandating that the Presidential election be held on the first Tuesday after the first Monday of November.
But while Congress, pursuant to its Constitutional authority, has mandated the date on which the Presidential election must take place, the individual state legislatures are still vested with a large amount of discretion to decide the place and manner of the elections. For example, while Congress has set the date on which the election is to take place, it has said nothing about the closing time by which all votes must be cast on that date. Should the polls close at 5:00 pm? 8:00 pm? This is a prudential matter left to the resolution of the individual state legislatures. Even more critically—should mail-in voting be allowed? If it is, how should it be done? Do mail-in ballots need to be received by election day itself, or is it sufficient for them to arrive later, so long as they are post-marked the day of the election? Again, this is a matter of prudential judgment left to each state legislature. But in any event, the Constitution vests resolution of these matters with the state legislatures—not with the judiciary.
Pennsylvania
Now we come to Pennsylvania. Until last year, Pennsylvania election law only allowed ballots to be submitted through the mail if the voter demonstrated he or she would be absent on election day—the traditional absentee ballot. Absentee ballots, furthermore, had to be received by the respective county board of elections no later than 5:00 pm on the Friday before election day. But then, in 2019, the Pennsylvania state legislature—known as the General Assembly—revised this law to allow mail-in voting for any reason, in addition to absentee voting.
More critically, the Pennsylvania General Assembly did away with the requirement that ballots sent through the mail be received by 5:00 pm on the Friday before the election. Now, in place of those requirements, all votes submitted via mail must be received by 8:00 pm on election day itself—in this case, November 3. But the legislation does not consider as valid any ballot received after 8:00 pm on the day of the election.
The resulting litigation
Nobody disputes the above provisions of Pennsylvania law. It is also undisputed that these procedures do not violate the Constitution. Nevertheless, this past September 17 the Pennsylvania Supreme Court issued an order directing the Pennsylvania Secretary of State and all Pennsylvania county election boards to accept as legal all mail-in votes received up to three days after November 3, contrary to what the General Assembly passed. But that was not all—the court also said that mail-in votes had to be counted even if they lacked a postmark indicating they had been sent out on election day itself. In other words, the Pennsylvania Supreme Court ordered the election boards to include as valid votes lacking any proof that they were actually cast on November 3, 2020—the day Congress has set for the Presidential election.
Not surprisingly, the Republican Party of Pennsylvania was dissatisfied with this order and accordingly filed a petition for a writ of certiorari with the United States Supreme Court, which is still pending. In other words, the Court has not yet issued an order on whether to accept the case. But because of the matters at issue, it is highly likely the Court will take the case, regardless of whether or not it changes the final vote tally in such a manner as to decide the Presidential election.
Why is this important?
This case is about far more than the ultimate winner of the Presidential election. It is also about far more than allegations of election fraud. More importantly, it goes to the heart of who has the final say in deciding how Presidential elections are to be conducted—the state legislature, or the state judiciary? As noted above, the Constitution vests state legislatures, and not the state judiciary, with the authority to set the rules for Presidential elections. There is no ambiguity about the language in Pennsylvania’s election law—only those mail-in ballots received by 8 pm on election day are valid, legal ballots. Any received afterward are invalid. All parties in the case agree that these are the rules that the Pennsylvania General Assembly implemented for the Presidential election. And everybody agrees that, of themselves, these rules are not unconstitutional.
Nevertheless, the Pennsylvania Supreme Court ruled that because of potential hardships some may experience in mailing in their ballots, the November 3, 8 pm deadline had to be extended by three days to Friday. The court admitted that no law explicitly gave it the authority to extend this deadline. But it nevertheless concluded that it could extend the deadline, not on federal constitutional grounds, but rather on the nebulous provision of the Pennsylvania state constitution providing that “[e]lections shall be free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.” Pa. Const. art. I, §5." It did this despite admitting that there was no evidence of any civil or military power hindering people from voting on election day.
By purporting to rely on the Pennsylvania state constitution, and not the federal Constitution or federal law, as the basis for extending the deadline, the Pennsylvania Supreme Court is hoping to avoid having the US Supreme Court review it. Review by the US Supreme Court is only available when the issues relate to federal law. If the issues are purely state law, the US Supreme Court has no authority to hear the case. Not surprisingly, those opposing the Republican Party’s cert petition has raised these arguments as grounds for denying the cert petition.
But it seems to me that the opponents of cert, as well as the Pennsylvania Supreme Court, are on thin ground. The US Constitution explicitly vests authority to determine the manner of Presidential elections with the state legislatures, not the state judiciary. If concerns existed that may have justified extended the deadline to receive mail-in ballots, those are concerns that the Pennsylvania General Assembly was empowered to address, not the Pennsylvania Supreme Court. Under the guise of applying purely state law, the Pennsylvania Supreme Court has, in effect, usurped the Pennsylvania General Assembly’s authority under the Constitution to determine the time, place, and manner of Presidential elections.
In other words, this case is about preserving the ability of state legislatures to make their own prudential judgments about how best to conduct Presidential elections, and not be second-guessed and overridden by the state judiciary. This is not a matter of state law such that the US Supreme Court cannot review it. Rather, it goes to the very heart of the US Constitution’s vesting of such authority with the state legislatures. As such, it is entirely about federal law. Indeed, the case boils down to the very manner in which the US Constitution structures the state legislatures as participants in Presidential elections.
Given this, the Court will hopefully hear the case regardless of how or if its resolution affects the outcome of the Presidential election. The issues are too important on their own for the Court to ignore.
John M. Reeves, an appellate lawyer in St. Louis, is the founder and owner of Reeves Law LLC. A native of Chicago, he graduated from Washington University in St. Louis in 2004 with both a Bachelor of Arts and Master of Arts in History, having earned his master's degree within four years of undergraduate study. Mr. Reeves likewise earned his law degree from Washington University in St. Louis, graduating in 2007. He spent six-and-a-half years as an Assistant Missouri Attorney General in Jefferson City, Missouri, before returning to St. Louis and entering private practice.
Mr. Reeves has authored over 250 appellate briefs, including several in the Supreme Court of the United States. Find him on Twitter @reeveslawstl
