The fourth and final claim of a state law violation—the Pennsylvania Supreme Court’s modification of the statutory deadline for receipt of mail-in and absentee ballots—was addressed at length in the Commonwealth’s opposition to petitions for writ of certiorari that are currently pending before the Court. Republican Party of Pa. v. Boockvar, No. 20-542 (U.S.); Scarnati v. Boockvar, No. 20-574 (U.S.). A confluence of unforeseen circumstances—a high demand for mail-in ballots due to COVID and a slowdown in the postal service—created an impending, as-applied state constitutional violation of the Pennsylvania Constitution’s Free and Equal Elections Clause. See Pa. Democratic Party, 238 A.3d at 371-72 (Pa. 2020). In order to prevent that violation, the Pennsylvania Supreme Court modified the statutory deadline. Such modification did not violate the Electors Clause because that clause does not relieve state legislatures of the obligation to comply with their state constitutions. See AIRC, 576 U.S. at 818; see also Democratic Nat’l Comm. v. Wisc. State Legislature, No. 20A66, __ U.S. __, 2020 WL 6275871, *1 (2020) (Roberts, C.J., concurring in denial of stay) (allowing the modification of election rules in Pennsylvania because it “implicated the authority of state courts to apply their own constitutions to election regulations”). Although Texas makes no mention of AIRC, that case, not Chief Justice Rehnquist’s concurrence in Bush v. Gore 531 US 98, 111 (2000) (C.J., Rehnquist)
(concurring), controls here.
Indeed, Texas’s argument is so untethered from the actual state of the law that it makes the remarkable claim that a state legislature’s power to direct the manner by which presidential electors are appointed is “plenary.” Motion at 17-18. So plenary is that power, Texas claims, that state legislatures are not bound by either the state constitution that establishes them or the laws that the legislature itself has passed. Motion at 17-18. Texas is gravely mistaken. The “exercise of the [legislative] authority,” even over federal elections or the manner by which presidential electors are selected, has to be “in accordance with the method” prescribed in a state’s constitution. Smiley v. Holm, 285 U.S. 355, 367 (1932); see also Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565 (1916). State legislatures are, of course, also bound by substantive provisions in their state constitutions.
Nothing in the Electors Clause permits a state legislature to enact a law “in defiance of provisions of [its] State’s constitution.” AIRC, 576 U.S. at 817-818. When this Court said that state legislatures “possess[] plenary authority,” it was referring to a legislature’s authority to choose a particular “manner” for selecting presidential electors: “by joint ballot,” or by “concurrence of the two houses,” or by “popular vote,” whether by “general ticket” or by congressional “districts.” McPherson v. Blacker, 146 U.S. 1, 25 (1892). As the Court has made clear, “[t]he legislative power is the supreme authority, except as limited by the constitution of the state.” Ibid.
Taking a quote from McPherson out of context, Texas suggests that this plenary power permits a state legislature to nullify the will of the electorate and select its own electors. Motion at 17-18. There is no support in McPherson for such an extraordinarily antidemocratic proposition. Rather, in McPherson, this Court was merely quoting from a Senate report. McPherson, 146 U.S. at 35.
Having directed the selection of presidential electors by popular vote in Pennsylvania, the General Assembly choosing its own slate of electors ex post would be unconstitutional. Kelly v. Commonwealth, 2020 WL 7018314, *5 (Pa., Nov. 28, 2020) (Wecht, J., concurring). “There is no basis in [state] law by which the courts may grant [a] request to ignore the results of an election and recommit the choice to the General Assembly to substitute its preferred slate of electors for the one chosen by a majority of Pennsylvania's voters.” Id. at 3. The “General Assembly ‘directed the manner’ of appointing presidential electors by popular vote nearly a century ago.” Ibid. (quoting U.S. CONST. art. II, § 1, cl. 2). There is nothing in the Election Code that permits the General Assembly to “circumvent [this method and] to substitute its preferred slate of electors for that ‘elected by the qualified electors of the Commonwealth.’” Id. at 4 (quoting 25 P.S. § 3191). For the General Assembly to “alter that ‘method of appointment’” would require new legislation, done “in accordance with constitutional mandates, including presentment of the legislation to the governor to sign or veto.”
Ibid. (quoting McPherson, 146 U.S. at 25).
There was no violation of the Commonwealth’s election law, and no violation of the Electors Clause here. Texas cannot succeed on the merits of this claim.
https://www.supremecourt.gov/DocketP...%20v.FINAL.pdf
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Originally Posted by johnwk
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