The United States Constitution could not be clearer that state legislatures, not courts, make the laws that regulate how elections are held in each state. That’s not happening right now in the battleground state of Pennsylvania, one of a handful of states that elect state Supreme Court justices in partisan elections.
Earlier this year in Pennsylvania, the Democrat-dominated state Supreme Court ruled that ballots could be counted up to three days after Election Day, even if it could not be shown that they had arrived by November 3, as required by state law.
Earlier this year the United States Supreme Court rejected an action brought by the Pennsylvania Republican Party to block the Pennsylvania Supreme Court’s actions. The court rejected it with a 4-4 vote, but did not rule on the merits of the case, which are still very much at issue. In addition, the court at the time did not include newly-minted Justice Amy Coney Barrett.
One can understand why the U.S. Supreme Court would want to avoid invalidating a state court ruling on an election before the election is held. In other words, to take a wait-and-see approach, but now we have waited and what we see is an incredibly tight race in Pennsylvania that could well decide the presidency. The merits of the case really matter, which is why the Pennsylvania GOP and the Trump campaign have joined in a new lawsuit meant to block ballots without postmarks, or those received after Election Day.
This time around, SCOTUS must restore the rule of law by rejecting the blatant political maneuvering of the Pennsylvania Supreme Court. The state’s high court not only rewrote a law passed by the state legislature, it invited all kinds of corruption on the part of vote-counters in charge of determining what ballots are accepted.
The counters are supposed to be segregating the ballots received after Election Day, in case they are invalidated by a Supreme Court ruling. But GOP officials are alleging they are being locked out of oversight of the count, so no one can say with any certainty whether the proper ballots are being segregated.
Adding to the possibility of corruption is that in Philadelphia, which almost certainly has the largest number of late mail-in votes, officials can see the statewide results and they have a pretty good idea of how many extra votes Biden needs to win the state, which Trump now narrowly leads.
The overtly politically nature of the Pennsylvania Supreme Court, which is not only controlled by Democrats but heavily tied into the state party machine, is further reason why the U.S. Supreme Court should tamp down this obvious judicial activism.
The law as written could not have been clearer: votes received after Election Day should not be counted. This is in no sense disenfranchisement, it is rather the normal functioning of the state legislature’s right to set election laws. Meanwhile, voters in the Keystone state had plenty of time to get their ballots in. Frankly, if a voter waited until the last minute and the ballot didn’t arrive on time, that is on them.
The U.S. Supreme Court must not punt on this vital issue this time around. With so much potentially hanging on the result in Pennsylvania, the nation’s highest court should make clear that legislatures write voting laws, not courts. Pennsylvania has a Republican-controlled legislature but a Democratic mayor in Philadelphia, a Democratic governor, secretary of the commonwealth, attorney general, and yes, state Supreme Court. The U.S. Supreme Court needs to act this time, to protect the rule of law and the integrity of the presidential election from this blatantly unconstitutional abuse of power in Pennsylvania.