The Supreme Court has taken an exceptionally long time – given the impending election — to address the legal challenges before it involving voting issues in Pennsylvania. Given that length of time, it’s reasonable to assume we are going to get a substantial opinion from the Court, which will likely include dissenting opinions as well. The opinions could well address one of the most important unresolved constitutional issues concerning state regulation of presidential elections and maybe national elections more generally. The ramifications of the Court doing so would go well beyond PA and well beyond this election as well.
Two principal issues are before the Court, as it reviews the decision from the PA supreme court. The first issue, a minor one, is whether the state court decision permits absentee ballots to be cast after Election Day and, if so, whether that would violate federal statutes that require the election to take place on Election Day. If that’s all the Court addresses, the decision would be of minimal legal and practical significance.
But given the length of time this case has been pending – the initial application for a stay was filed on Sept. 28th – it is reasonable to assume the Court is addressing the much bigger question. That issue is what the meaning of the term “legislature” is in the Constitution. More specifically, the question is the meaning of that term for purposes of the Elections Clause in Art. I — which applies to state regulation of national elections in general — and the Art. II provision that governs the Electoral College and the presidential elections process in particular.
The more immediate stakes in this issue focus on whether the PA supreme court violated the Constitution in ordering that absentee ballots be treated as valid votes even if received up to three days after Election Day. In PA, the Elections Code, enacted through the normal lawmaking process, requires that absentees must be received by 8 pm on Election Night to be valid. Around 40 states similarly require valid absentees to be received on or before Election Night, though some states permit later receipt. Based on the state constitution, the PA supreme court held that this three-day extension was required, in order to protect the right to vote, given potential delays in mail service.
If the Court holds that the PA court decision was itself unconstitutional, that would mean that courts – both state and federal – would not have the power to order extensions of these receipt deadlines. That could be consequential for this election, particularly in PA; it would also mean that any court decisions still intact that have extended these deadlines could now be challenged and possibly reversed. But by now, there are not many court decisions still in place that have ordered extension of these deadlines. Most decisions by lower courts, state or federal, that have done so have now been reversed on appeal.
Much more importantly, though, is the path by which the Court would have to get to this result. The term “legislature” appears in the Constitution seventeen times. And a major constitutional issue centers around whether that term is best understood to mean (1) the ordinary lawmaking processes of a state, as established by the state constitution, or whether it should mean only (2) the formal institution of the legislature itself. Put less legalistically, the issue is whether in regulating the presidential election process or national elections more generally, the state legislatures have exclusive powers that cannot be significantly constrained by the ordinary constraints on state lawmaking – such as the state constitution or the requirement that that the Governor be given an opportunity to veto proposed laws.
To hold that the PA court violated the Constitution, the Court would have to hold that “legislature” means the formal institution itself. That would mean the state constitution cannot control the substantive policy choices the legislature makes about the rules governing presidential elections (and perhaps all national elections, as well). The state legislatures would still be bound by the federal Constitution, of course, so that they could not enact rules that would violate the Fourteenth or Fifteenth Amendments, for example. But within the state, the legislature would have plenary and exclusive control over the ground-rules for presidential elections.
The ramifications of that ruling would spread far and wide. For one, would this mean that Governors would no longer be able to exercise vetoes over the “legislature’s” regulation of the presidential election process? That would, of course, be a profound change. Second, to what extent are various state constitutional provisions still binding on the legislature when it regulates the presidential election process – in other words, what would the boundaries be on the kind of rules the state constitution can or cannot impose on the legislature? As an example, suppose a state constitution requires ten days of early voting in presidential elections; if the legislature wants to have more or fewer days, would the Constitution now mean that the state legislature is free to decide for itself on matters like this, regardless of the state constitution?
Another major question would be whether the implication would be that the term “legislature” would mean only the institution itself all seventeen times it is used in the Constitution. The Court’s decision might expressly address only the “legislature’s” power over presidential elections, under Art. II. But what would the decision imply about the state “legislature’s” power to regulate all national elections, under the Art. I Elections Clause?
Three options exist here: (1) the term “legislature” always means simply the institution itself; (2) the word legislature always means the ordinary lawmaking processes of the state; (3) “legislature” sometimes means the institution and sometimes means the ordinary lawmaking processes of a state. As an example of how that third possibility might come about, the Court could hold that Art. II, on the presidential election process, is a special provision that was specifically designed to give the legislatures exclusive control over this essential process. But if we think the Court has a textualist majority, it is not hard to imagine textualists concluding that “legislature” must have the same meaning each time it appears in the Constitution.
Yet another question would immediately be what implications this has for the Court’s recent 5-4 decision upholding the right of voters, through the initiative process, to bypass the legislature and adopt independent commissions, or commissions of other designs, to do redistricting. That decision, in Arizona State Legislature v. Arizona Independent Redistricting Commission – the title tells you exactly what’s going on in the case – held that “legislature” in the Elections Clause means the ordinary lawmaking processes of a state. As a result, if a state permits voter initiatives to regulate the national election process, that does not intrude, based on the AIRC decision, on any purportedly exclusive powers of the state legislature. But the decision provoked a vehement 4-Justice dissent, written by Chief Justice Roberts.
If the Court holds that the PA court has violated the federal constitution, that would certainly create obvious tensions with the AIRC decision. The Court is unlikely to say anything about the continuing validity of that decision. And it’s possible in later cases, the Court might conclude that, even if AIRC is in tension with the (forthcoming) PA decision, that the Court will respect the precedent of that decision, but will not extend it further to new contexts. But however the Court ultimately resolves the continuing validity of AIRC, there would certainly at least be tension between that decision and the PA decision that will, eventually, have to be resolved.
On top of all this, the Court would likely have to say something about the notoriously uncertain Purcell principle. Other than as a general admonition to courts to be wary of making last-minute changes to election laws, Purcell does not lay out clearly which types of last-minute changes courts can properly make and which not. If the Court overturns the PA supreme court decision here, the Court will have to provide a bit more clarity about Purcell and why it does not stand in the way here of the Court’s decision [Update: As I discussed earlier on this blog, the Purcell doctrine does not technically apply to decisions of state courts, so the Court might not feel an obligation to say anything about the doctrine]
Finally, a holding that “legislature” means only the formal institution would put the federal courts in the position of having to adjudicate a vast array of election-law issues previously thought to be solely within the purview of state law. That would be all the more true if the decision implies that “legislature” means only the institution for purposes not just of presidential elections, but state regulation of all national elections. Each time a state court interprets state law on these matters, the ruling would be easily transformed into one that implicates federal constitutional law. The losing side will always pursue the argument that the state court interpretation unconstitutionally interferes with “the legislature’s” exclusive power. Similarly, rulings of state executive officials on election law, such as from the Secretary of State, could easily be transformed into federal constitutional ones, for the same reason. The federal courts might eventually conclude that “reasonable” interpretations of the election code do not violate “the legislature’s” exclusive power – but that would put the federal courts in the position of judging, case by case, whether the actions of state courts or executive officials regarding state election law, for national elections, is indeed reasonable.
This essay just begins to unpack the range of questions that will arise should the Court hold that the PA supreme court violated the U.S. Constitution. That decision would be a blockbuster one, whose implications the federal courts would spend years sorting out.
We should find out any day now whether, in fact, that’s why the PA case has been pending so long.