To my friends and family I am writing about the issue I find most fascinating about the 2020 Presidential Election in Pennsylvania. The contest between the Legislative and Judicial branches of our State and Federal Governments with the catalyst being the acquisition of the Executive Branch
A few facts
The US Constitution grants the right to state legislatures to define their local election laws concerning the statewide acceptance of ballots cast in Presidential Elections. Everything from the dimensions of the ballots, the width of the margin on the ballot, the type of envelope that must be used is defined by the Legislature. The Legislature also defines the dates and times related to Early Voting, In-Person voting, Absentee/Mail-In ballots and what defines an eligible voter. This is all granted to state legislatures by Article 1 Section 4 of the United States Constitution.
The Constitution of the United States
Article. I. , Section. 4. :
The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.
The residents of each state vote on who will be their state representatives. The state representatives then debate and pass election laws accordingly.
This article is about the deadline for the receipt of ballots in the 2020 Presidential election in Pennsylvania. In Pennsylvania Act 77 and Act 12 are germane to what is going on now
Pennsylvania Legislature currently states:
Section 1308. Canvassing of Official Absentee Ballots and Mail-in Ballots.–* * *
(g) (1) (i) An absentee ballot cast by any absentee elector as defined in section 1301(a), (b), (c), (d), (e), (f), (g) and (h) shall be canvassed in accordance with this subsection if the ballot is cast, submitted and received in accordance with the provisions of 25 Pa.C.S. Ch. 35 (relating to uniform military and overseas voters).(ii) An absentee ballot cast by any absentee elector as defined in section 1301(i), (j), (k), (l), (m) and (n), an absentee ballot under section 1302(a.3) or a mail-in ballot cast by a mail-in elector shall be canvassed in accordance with this subsection if the absentee ballot or mail-in ballot is received in the office of the county board of elections no later than eight o’clock P.M. on the day of the primary or election
The Democratic Party in Pennsylvania sought to change their state election laws through the Legislature. The Legislative branch went back and forth each side rejecting each other’s proposals. They eventually passed Act 12 however this did not satisfy the Democratic Party so on September 8, 2020 Secretary of the Commonwealth of Pennsylvania Kathy Boockvar representing the Democratic Party in Pennsylvania brought suit to The Pennsylvania Supreme Court seeking five separate counts. The one directly related to this article is count 2 which was to extend the deadline by which Pennsylvania would accept ballots. The Pennsylvania Supreme Court rendered a decision on September 17, 2020 to extend the deadline in favor of the Democratic Party.
The Pennsylvania Supreme Court
In Count 2, Petitioner sought an injunction to “lift the deadline in the Election Code across the state to allow any ballot postmarked by 8:00 p.m. on Election Night to be counted if it is received by the Boards” by 5:00 p.m. on Tuesday, November 10, which is the deadline for ballots to be received under the Federal Uniformed and Overseas Citizens Absentee Voting Act (“UOCAVA”).5
Id. at 50, ¶ 178.
B. COUNT II OF THE PETITION FOR REVIEW
In its second count, Petitioner presents this Court with an as-applied challenge to the Election Code’s deadline for receiving ballots (“received-by deadline”), which requires mail-in and absentee ballots to be returned to Boards no later than 8:00 p.m. on Election Day, 25 P.S. §§ 3146.6(c), 3150.16(c). It contends that strict enforcement of this
deadline, in light of the current COVID-19 pandemic and alleged delays in mail delivery
by the USPS, will result in extensive voter disenfranchisement in violation of the
Pennsylvania Constitution’s Free and Equal Elections Clause.
The Pennsylvania Supreme Court wrote in the decision
The Legislature enacted an extremely condensed timeline, providing only seven days between the last date to request a mail-in ballot and the last day to return a completed ballot. While it may be feasible under normal conditions, it will unquestionably fail under the strain of COVID-19 and the 2020 Presidential Election, resulting in the disenfranchisement of votersUnder our Extraordinary Jurisdiction, this Court can and should act to extend the received-by deadline for mail-in ballots to prevent the disenfranchisement of voters
This is an attempt to side step the State Legislature. The way to change election law is through the legislature as defined in the United States Constitution. HOWEVER as pointed out by the suit brought by the Democratic Party there have been exceptions made in times of national emergency. The suit makes a powerful and emotionally compelling rationale for why the Democratic Party sought relief, however instead of pursuing further Legislative actions through the state house where they had already lost, the Democratic Party sought relief through the courts.
The Law is not Soulless, but neither is it always compassionate. Does the current environment raise to such a level to allow the Judicial Branch to override the Legislative branch when the Legislative branch just recently enacted changes to the Pennsylvania election code? It wasn’t as if the Pennsylvania Legislative branch was asleep at the wheel. The very thing the Democratic Party sought remedy for had been discussed, debated, voted on and rejected by the duly elected representatives of the state of Pennsylvania six months prior with the passage of Act 12.
Our Constitution is not judged by the times of peace and tranquility, but by the difficulties our great experiment weathers.
This is truly a battle between the Legislative and Judicial branches in Pennsylvania and ultimately the United States Supreme court, but only in ruling on the legality of the decision made by the Pennsylvania Supreme Court.
If this were scored in rounds;
Round One was won by the Pennsylvania Legislature.
Round Two was won by the Democratic Party through a Legislative Decision by the Pennsylvania Supreme Court.
Round Three was won by the Democratic Party when the United States Supreme Court tied 4/4 and punted the issue back to the state.
Round Four will go back to the Pennsylvania Supreme Court and will most likely be won by the Democratic Party.
Round Five will go to the United States Supreme Court. Since we now have 9 fully seated Justices we should get an answer on whether the decision by the Pennsylvania Supreme Court was correct or not. The Supreme Court might also decline to hear the case.
There was a level of gamesmanship deployed by the Democratic Party that everyone should appreciate. It was a long game started in early 2019 with a focus on changing election laws in multiple states. By the way that is 100% legal. Both sides try to do it all the time. Then COVID hit our shores and the combination of COVID and stumbles by the USPS gave the Pennsylvania Democratic Party ammunition to wield. This along with the letters from the Post Master General were used as arguments in Round 2, or count 2 in the suit brought to the Pennsylvania Supreme Court. The purpose was to enable votes to arrive after the election. It was a strategic plan by the Democratic Party in Pennsylvania and they executed it well.
The Democratic Party was not going to rely on this alone. Nationally there was a push, an outcry at the Confirmation of Amy Coney Barrett. Of course this was a strategic push on the part of the Democratic Party to keep the SCOTUS deadlocked. I do not believe this was something either party envisioned, but the passing of Ruth Bader Ginsburg was seized upon by both Republican and Democratic parties. Both parties could see the writing on the wall of the advantages of having the court with eight Justices from the Democratic Party point of view and of have nine Justices for the Republican side. Note Amy Coney Barrett had already been confirmed when SCOTUS heard Round Two, but she did not comment or rule on the case. She also did not recuse herself. She stated that she had not had the time needed to study all of the briefs on the matter.
When this goes back to the SCOTUS, if they agree to accept the case, Pennsylvania will get a definitive answer on whether The Pennsylvania Supreme Court was within their Judicial Power to overrule the Pennsylvania Legislative branch.
There are 5 counts in the suit brought by The Democratic Party in Pennsylvania to The Pennsylvania Supreme Court. I did not read all 63 pages in the decision. I only read count 2 which related to extending the date to which ballots can be received. What I have read on both the Judicial Brief as well as Act 77 and Act 12 I can honestly see merit to both viewpoints.
Personally I think The Pennsylvania Supreme Court engaged in legislation from the bench and the ruling should be overturned. Thereby invalidating ballots received after 8PM on November 3rd. The only exception would be overseas military ballots I believe.
No were else on Earth is there a government that works in precisely the same way the United States of America functions. Our form of governance is on display with our Constitution right out front for all the world to see.
Yes, we live in interesting times in all its meanings and we should welcome the test to our laws and Constitution.