The Likely Issue in the Trump Campaign’s Supreme Court Petition out of PA

I expect the main constitutional issue the Trump campaign will raise in this petition to be the argument that the PA Supreme Court unconstitutionally interfered with the state legislature’s power in Art. II, Sec. 1, cl. 2 of the Constitution. That provision states the “legislature” in each state may direct the “manner” by which a state appoints its electors to the Electoral College. The petition will argue, I expect, that when the PA Supreme Court held that the state constitution required PA to accept absentees up to 5 days after Election Day, when the enacted state election law requires those absentees to be received by 8 pm on Election Day, the state court (and the state constitution, in essence) unconstitutionally interfered with “the legislature’s” power to direct the method of selecting electors.

This is potentially a huge issue — perhaps, in fact, the single most important legal issue that could arise before the election. If the Supreme Court were to take the case and accept this argument, it would mean that there would be federal constitutional oversight over how state courts apply any state law (either through statutory interpretation or, as here, through interpretation of the state constitution) governing voting in the presidential election. This is an argument that three Justices of the Supreme Court endorsed in Bush v. Gore (CJ Rehnquist and Justices Scalia and Thomas).

Not having seen the petition, I have no prediction about whether the Court would choose to hear the case — assuming I’m right about the central issue it will raise.

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