Perhaps the Dumbest Argument Ever Made in Emergency Petition to the Supreme Court Appears in Pennsylvania Election Case

Over the weekend I wrote about the Pennsylvania’s Supreme Court decision to block a ridiculous lawsuit filed by a Republican state senator in state court which argued that the expansion of absentee voting done in 2019 by the Republican state legislature, including the plaintiff in the suit, violated the state constitution. It was a ridiculous suit for many reasons including laches: if you have a problem with an election rule, you cannot wait until after the election is run to see if you like how the election came out before suing. The state Supreme Court unanimously agreed that any kind of relief that would disenfranchise voters who voted using the system approved by the legislature would be impermissible.

I then noted that because this case presented only a question of state law, there were no apparent grounds to go to the Supreme Court, as the plaintiff announced an intention to do.

Well now the plaintiff has filed an emergency application for an injunction in the Supreme Court, and the federal question presented is: “May a legislature violate its state constitution’s restrictions on the lawmaking power when enacting legislation for the conduct of federal elections pursuant to Article I, § 4, and Article II, § 1 of the U.S. Constitution? (There’s a second dumb question related to laches that is not even worth the time.)

This is kind of the opposite of the independent state legislature doctrine that we’ve seen in some of the other cases. In those other cases, the argument is that a state legislature cannot be constrained by provisions in a state constitution (as interpreted by a state supreme court) in setting rules for federal elections. This case argues that when a state legislature fails to follow a state constitutional provision, that failure violates the U.S. Constitution. Which provision of the Constitution? The question presented points to provisions in the Constitution that give state legislatures the power to set election rules, so how could that possibly be violated by a state legislature setting election rules?

Even worse, the state supreme court is the ultimate arbiter of the meaning of the state constitution, not the U.S. Supreme Court, and so it is not for the U.S. Supreme Court to say if the PA legislature violated the PA constitution.

The plaintiff wants an order from the U.S. Supreme Court nullifying the effect of the certification of the electors. It is not clear that this kind of remedy is even available. But I do not expect this case to go anywhere at the Supreme Court.

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