The following is a symposium contribution from Derek Muller (Iowa):
President-Elect Joe Biden’s margin of victory in the Electoral College and in decisive “swing states” is increasingly impermeable to potential recounts or “faithless electors.” It’s reminiscent of the margins of the 2016 election—recounts don’t change tens of thousands of votes, and electors are rarely faithless even under the most ideal conditions.
So what happens to Republican Party of Pennsylvania v. Boockvar, the biggest pre-Election Day case still sitting before the Supreme Court? The dispute concerns the Pennsylvania Supreme Court’s decision to require counties to accept ballots received up to three days after Election Day, as long as they were postmarked by Election Day or lack a postmark.
The Republican Party argued that this judicial order—construing the commonwealth’s constitution—breached the legislature’s clear statutory directive that all ballots must be received by Election Day. It’s an argument from Article II of the Constitution, that the “legislature” directs the manner of appointing electors, and, as Chief Justice Rehnquist put it in a concurring opinion in Bush v. Gore, “the clearly expressed intent of the legislature must prevail.”
Philadelphia County reported 500 or so in this three-day period; Allegheny County, which includes Pittsburgh, tabulated 947 ballots; Luzerne County reported 255 ballots, or about 0.2% of the county’s vote total. (Pennsylvania has been tabulating all votes but keeping these disputed ballots separate from others.) It appears a push by the post office and public awareness of the importance of mailing ballots early have minimized such disputed ballots.
It seems unlikely the statewide total of such ballots exceeds even 10,000. The margin separating the candidates now sits around 40,000, and pulling these ballots—even if every single one were cast for one candidate—wouldn’t change the result.
So what happens to this case?
Mootness: One argument might be that the claim is moot. The election is over, and a judicial decision wouldn’t change the outcome. Doesn’t that mean there’s no live case left?
Election law cases like one this are often treated as an exception to mootness, “capable of repetition yet evading review.” Anderson v. Celebrezze (1983), Storer v. Brown (1974), Rosario v. Rockefeller (1973), Dunn v. Blumstein (1972), and Moore v. Ogilvie (1969) are just a few expressly addressing the mootness point. Anderson, for instance, involved John B. Anderson’s independent presidential campaign in 1980—in a decision the Court issued in 1983.
It seems strange to say it “evades review” when, well, the case was in front of the Supreme Court before Election Day. But no one says the Court’s mootness precedents are the most coherent.
Cert-worthiness: Another question is whether the case is still worthy of granting certiorari. If it doesn’t affect the outcome of the election, why hear it?
Four justices have already written or signed onto pre-Election Day opinions showing interest in revisiting this Article II issue about the power of legislatures: Justice Alito, joined by Justices Thomas and Gorsuch, in the Pennsylvania litigation; and Justice Kavanaugh in litigation from Wisconsin. (Justice Kagan, joined by Justices Sotomayor and Breyer, pushed back against Justice Kavanaugh’s position.)
Justice Barrett did not participate in these disputes. It’s not clear why Justice Kavanaugh didn’t join Justice Alito’s opinion. And Chief Justice Roberts concluded that his reluctance to weigh in on the Pennsylvania was attributable to “the authority of state courts to apply their own constitutions to election regulations,” along with “different precedents.” Precedent, perhaps, as Justice Kagan cited, like Arizona State Legislature v. Arizona Independent Redistricting Commission, a dispute arising out of the context of congressional elections (not presidential election), and one that Chief Justice Roberts dissented from but may now feel bound by.
In short, it’s unclear whether there are four votes to grant certiorari, or how it might shake out if certiorari is granted. But the interest, and the intrigue, remains high, in my view.
Reliance interests: One cut against the plaintiffs’ claims would be the reliance interests of the voters in a pre-Election Day posture rather than a post-Election Day one. That is, voters dropped ballots in the mail by Election Day with the assumption that Pennsylvania would count those votes if received by November 6.
But I wonder if an emphasis on “it doesn’t matter if these votes are counted because the result is the same” makes reliance interests less salient. That is, the Court might feel more comfortable in the post-Election Day posture knowing that these ballots feel more like an abstract proposition than outcome determinative.
There would be significant complications in the ensuing briefing if certiorari is granted. Does the Court revisit precedents like Arizona State Legislature? Does it treat presidential elections differently from congressional elections? Does it treat judicial construction of statutes differently from construction of state constitutions?
I don’t know what happens if the Court grants cert. But I think it remains a distinct possibility that it chooses to do so, when it has ample time for briefing and when it knows its answer will not alter the outcome of a pending election. And that decision could be transformative for future election cases.