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Not So Fast Pennsylvania: There are Limits on Judicial Power

William L. Kovacs

November 2020

Not So Fast Pennsylvania: There are Limits on Judicial Power

Notwithstanding factual issues of fraud, dead people voting, and observers not able to observe, there is a real legal issue putting at risk all votes Pennsylvanians cast after the polls closed on November 3rd. An issue four U.S. Supreme Court justices indicate needs review. The facts are not in dispute. The legal question is whether Pennsylvania’s Supreme Court can extend the time for voting beyond that set by the state legislature?

It must first be noted the election was not called by any official government entity. It was called by CNN, a cable television channel. CNN awarded Biden twenty electoral votes, “making” him our 46th president. In 2000 CNN called the disputed election for Gore and had to withdraw its “call” in under 2 hours. Cable tv gave Gore 37 days to litigate his case.

Unfortunately for Pennsylvania, there is a federal Constitution that has supremacy over its courts and a state attorney general who tweets before the polls close, like the fix is in – “If all the votes are added up in PA, Trump is going to lose.”

Pennsylvania voters cast over 6.6 million votes. Joe Biden is ahead by around 45,000 votes or about 7/10th of one percent. Every vote counts if it’s legal and received by the deadline set by the legislature.

In 2019 the Pennsylvania legislature passed what Governor Wolf called “the most significant improvement to Pennsylvania’s elections in more than 80 years.” It expanded who could vote by mail and allowed voters to secure mail-in ballots as far out as 50 days before the election.

It also extended the deadline for election officials to receive absentee ballots, from 5 p.m. on election day to 8 p. m. November 3. What this clear legislative provision means, may determine who is our next president.

The state’s Democrat Party asked the Pennsylvania Supreme Court to extend the legislatively mandated deadline, by three days, for receiving mail-in ballots due to the pandemic related delays. Republicans opposed the extension request.

The Court extended the deadline for 3 additional days, until 5 p.m., November 6th. The court conceded that the judiciary “may not usurp the province of the legislature by rewriting [statutes]; the statute was unambiguous, constitutional on its face and not in need of interpretation. Notwithstanding such findings, the Court decided, due to the pandemic and postal mail delays, to balance broad language of the Pennsylvania Constitution (the electoral process in Pennsylvania is open and unrestricted to voters) against the mandate in the U.S. Constitution that state legislatures establish the times and manner of holding elections.

Using its balancing approach, the Pennsylvania Supreme Court asserted “Extraordinary Jurisdiction” to “[e]xtend the received-by deadline for mail-in ballots to prevent the disenfranchisement of voters.”

The Pennsylvania Republican Party sought a stay of the counting from the U.S. Supreme Court. The stay was denied on October 19, 2020, but four justices noted they would grant the application. As the “legal jockeying…intensified” the Republicans, on November 6, 2020, asked the U.S. Supreme Court to segregate the mail ballots delivered after election day. That evening Justice Alito ordered county boards to keep separate the ballots arriving after election day. He gave the state a day to respond.

It is unknown how many mail ballots were received between November 4 – 6, 2020. What is known is that the mail ballots in Pennsylvania were running 78% for Biden and that the margin of difference between Biden and Trump is around 45,000 votes. Using these numbers, if more than 60,000 ballots, out of 6.5million ballots, came in after the election, there a significant possibility that a U.S. Supreme Court reversal of the Pennsylvania court decision, could invalidate all votes received after November 3rd.

The U.S. Supreme Court should decide whether an admittedly unambiguous, constitutionally crafted statute, enacted by the state legislature to set the times and manner of elections, is the established election procedure; or whether the Pennsylvania Supreme Court has “Extraordinary Powers” to overrule the state legislature on setting the times and manner of elections?

While it is likely, Joe Biden will be the next president, the U.S. Supreme Court must address the Pennsylvania court’s claim to hold “Extraordinary Powers.” Either state legislatures set the time and manner of elections or they do not. This issue is capable of repetition. If the Supreme Court avoids this clear question of law, future state courts will claim “Extraordinary Powers” to control elections. The chaos resulting from such a decision will undercut the legitimacy of our electoral process.