I wrote earlier today at Slate about the important case coming out of the Pennsylvania Supreme Court. Here’s part of what I wrote:
The final argument that Republicans are advancing is the boldest and perhaps most dangerous one. The argument is that when state supreme courts apply their state constitutions’ provisions protecting a right to vote to loosen voting rules in a pandemic, these state courts are usurping the power given by the Constitution to state legislatures to set the manner for conducting presidential elections. The argument echoes an argument that three conservative justices on the Supreme Court accepted in the 2000 Bush v. Gore case ending that presidential election. It’s a dangerous idea that a state court applying a state constitution is taking away legislative power, particularly in states like Pennsylvania where the state legislature has itself approved the constitutional provisions being applied.
But this argument is likely to resonate with at least some of the conservative justices on the court. As professor Ned Foley explains, this argument for vast legislative power to set the rules for presidential elections could have dire consequences and that “partisan state legislatures wielding this power could create difficulties that call into question the fairness of the election.”
Of all the arguments advanced by Republicans in these lawsuits, this argument about legislative power can do the most mischief. Most dangerous is the idea, furthered in a recent Bart Gellman Atlantic piece, that state legislatures could try to disenfranchise voters and take back their power to appoint presidential electors directly even after the votes are counted.
Democrats filed their response in the Pennsylvania case today, but rather than simply oppose the stay, they make the following argument:
This Court may construe applications for a stay as petitions for certiorari and resolve them summarily—a course that is particularly appropriate when an election is fast approaching. See, e.g., Purcell v. Gonzalez, 549 U.S. 1, 2 (2006). That is the circumstance here. The 2020 general election is less than a month away, and the issues presented here call out for immediate and definitive resolution to provide States and voters with certainty about the rules that will govern them this fall, during this pandemic and at a time when COVID-19 cases are rising in Pennsylvania and around the country. If the Court agrees and reaches the merits, it should affirm the decision of the Pennsylvania Supreme Court for the reasons explained below….
This Court must definitively resolve the questions presented in this case in order to provide certainty both with respect to the balloting rules governing in Pennsylvania and, should the Court reach the merits, with respect to broader legal questions that are implicated in both this case and in other cases currently proceeding through state courts. Across the country, litigants from both parties are asking state courts to interpret or invalidate state election-law provisions on grounds similar to those asserted here. See, e.g., 20A54 Emergency Application for Stay 34-36 & nn.6-7 (hereinafter, “RPP Stay”). The question whether the Elections Clause curtails state courts’ authority to grant such relief is therefore likely to be recurring and, in light of the approaching election and the number of pending cases, of overwhelming importance. Moreover, as the Republican Party Applicants explain, the more specific questions presented here—whether courts may extend Election Day received-by deadlines and how election officials should treat nonpostmarked ballots received after Election Day—are equally important and recurring, as many pending suits involve both federal- and state-law questions related to the treatment of such ballots. Id. at 19, 36 n.7 (citing cases).
Unless these questions are definitively resolved now, uncertainty about the legal rules governing election regulation, and about what parties will have standing to challenge or defend them, could persist up to and after Election Day. Merely deciding whether the Applicants are entitled to the stays they seek would not provide the necessary definitive resolution. Denying the stay (or construing the applications as petitions for certiorari and denying certiorari) would not provide an opportunity for definitive resolution or even necessarily reveal the Court’s ultimate views as to the standing and merits questions, even in this very case. A stay denial would permit the Applicants to again seek stay relief from this Court closer to Election Day—or, even more disturbingly, to challenge Pennsylvania’s election results after Election Day on the ground that the results are allegedly tainted by mail-in ballots that should not have been counted under (what Applicants contend are) the correct legal rules. Conversely, granting the stay would signal merely that a majority of the Court believes there is a “fair prospect” of certiorari and reversal—without facilitating a definitive resolution of the questions presented. Moreover, any certiorari petitions would not be due until well after Election Day, but, by that time, the Pennsylvania Supreme Court’s decision will have expired by its own terms (as it governs only the 2020 election) and the case will have become moot. Thus, while granting the stay would effectively determine the mail-in ballot rule governing the 2020 election in Pennsylvania, it would not provide or facilitate the provision of definitive guidance concerning the important and recurring legal questions at issue.
When Ned Foley and the Wall Street Journal editorial page and I agree—we need certainty on these issues before the election—the Supreme Court should listen. As the Journal puts it: “To the Supreme Court: Please rule on the Pennsylvania legislature’s appeal. The rules are much less important than for people to know what they are before the election.”