//  9/29/20  //  In-Depth Analysis

The state Senate leadership in Pennsylvania, intervenors in litigation over the deadline to receive ballots cast by mail, has just asked the U.S. Supreme Court to stay a Sept. 17 decision of the Pennsylvania Supreme Court. The Pennsylvania Supreme Court ruled that ballots must be counted if they're received by Nov. 6, unless a preponderance of the evidence shows that those ballots were mailed after Election Day. The stay request asserts that this decision violates the federal law setting November 3 as Election Day, and also that it violates the Elections Clause of the Constitution.

That latter claim is worth a moment. The Elections Clause says that "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof . . . ," unless Congress says otherwise.  The U.S. Supreme Court has consistently interpreted this delegation to the "Legislature" to mean a delegation to the state lawmaking process (see, e.g., the 2015 opinion by Justice Ginsburg upholding Arizona’s independent redistricting commission).

The stay application filed at the U.S. Supreme Court claims that the Pennsylvania Supreme Court "has substituted its will for the will of the General Assembly, and this substitution usurps the authority vested in the General Assembly by the Elections Clause." The stay application also claims that "denying the requested stay will have a cascading effect on th[e] Court's docket," with a lot of other cases in the hopper.

These are big claims. But I'm not at all sure that the frame is right ... and I'm quite sure that granting the stay on Elections Clause grounds would have a much larger and more disruptive cascading impact.

Let’s start with the frame: the Pennsylvania Supreme Court acknowledged the general authority of the state legislature to set the date for receiving mail ballots.  But it also recognized some additional realities: the October 27 deadline for ballot requests, the standard processing and mail delivery times for those ballots, and the state’s prior pandemic-related experience with such ballots during the primary.  Given all that, the Pennsylvania Supreme Court found that the Pennsylvania Constitution requires more time for voters to send in votes this year.  In other words, the Pennsylvania Supreme Court determined that—whatever the legitimacy of a general rule requiring voters to return mail ballots by Election Day—the Pennsylvania Constitution did not permit the legislature to impose such a rule under present, pandemic circumstances.

On its face, this decision about the meaning of the Pennsylvania Constitution did not negate or evade or supplant the legislative process.  Instead, it clarified an underlying state constitutional requirement that serves as the necessary — and inevitable — legislative substrate. 

Consider, for example, a state constitution that sets the order of offices on the ballot: presidential electors, then U.S. Senate, then U.S. House, then state offices, then local ones.  Now imagine that the legislature in this state wants to nudge voters to think harder about local races by putting local races at the top of the ballot and federal races last.  The state courts would likely invalidate that law, however well-intentioned, as inconsistent with the state constitution.  And I take it we wouldn’t say, in that context, that the state court was “substituting its will” for the will of the legislature.  It was, instead, acknowledging that the legislature’s choices are constrained by the state constitution—and those constraints are inherently part of the operation of the state’s legislative power.

It's plain, I suppose, that I think the Pennsylvania Supreme Court did not usurp any properly delegated legislative power in the case in question.  But even those who disagree must grapple with a further quandary: state constitutions, given life by state judiciaries, must have some capacity to guide state legislative authority.  If some judicial elaborations of state constitutional provisions usurp legislative authority, some — extending or trimming or even slightly clarifying a particular application under particular circumstances — must not.  And determining which is which is a nightmare.

That brings me to the “cascading effect” those state legislators complain about: whether or not one agrees with a particular decision by a state court interpreting how its own state constitution applies in its own state’s lawmaking process, a federal decision to review that state court interpretation under the Elections Clause would have profound consequences.

To intercede in this arena—reviewing a state court’s interpretation of the state constitution as inconsistent with the state lawmaking process—the U.S. Supreme Court would, essentially, be assigning itself the task of determining when judicial action involves a “permissible” construction of state law rather than an “impermissible” alteration of it.  That is, the U.S. Supreme Court would be construing state constitutions to determine what they “actually” permit and what they do not, to determine whether legislatures had been on permissible ground in legislating in the first instance. The U.S. Supreme Court isn’t generally empowered to weigh in on what state law means.

(In the electoral context, some scholars have pointed to a proper role for federal courts in assessing ostensible changes in state law. If there’s an alteration of expectations from time 1 to time 2, sufficient to deprive participants in the electoral system of due process, that’s an evaluation of a federal constitutional right in light of public reliance.  That’s different from an interpretation of what state law permits or does not permit a state legislature to do.)

The stay application in Pennsylvania points out the ostensible docket consequences of refusing a stay: there are a few other cases involving judicial construction of legislative deadlines working their way through the courts.  But the docket consequences of an Elections Clause intervention here are much, much larger.  I’ve catalogued 262 cases involving COVID-19 and the election process so far this year; while they don’t all raise this issue, most of them involving relief ordered by state courts do.  And the uncertainty isn’t limited to this season’s litigation.  Long-settled state court decisions construing state election laws in light of state constitutional provisions would suddenly be unsettled, with uncertainty about whether they represented valid constructions of state law for state elections but invalid departures from state law for congressional or Presidential races.   

Again, this consequence doesn’t depend on the underlying substance of the state court decision (here, whether the Pennsylvania Supreme Court’s decision was correct or incorrect).  My point is that it’s quite hard for the U.S. Supreme Court to write a decision finding that the state supreme court unconstitutionally interfered with the state legislature’s power without also either 1) answering a whole host of additional questions about how you know when a state legislature goes too far under its own state law as interpreted by its own state high court or 2) instantly prompting a mass of cases asking those questions individually. 

In the litigation over the Arizona redistricting commission (decided in 2015), I offered a partial list of those questions that would have become quite prominent had the case come out the other way under the Elections Clause.  There are lots of them. Some of them are avoidable or distinguishable in the Pennsylvania context; others less so. 

The U.S. Supreme Court doesn’t do its best work in a hurry, and there is no doubt that we’re in a hurry to get the rules clear right now. But an Elections Clause intervention yields more questions than answers. It might seem, in a rush, that a decision under the Elections Clause would just restore a pre-existing deadline status quo. In truth, the necessary predicate for such a decision is a radically destabilizing legal determination, instantly upending a much more established status quo in almost every state in the country.


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On this week’s Versus Trump, Jason and Charlie are joined by Matthew Seligman of Public Citizen to discuss several lawsuits—including one in which he is counsel, NAACP v. USPS—where plaintiffs have challenged the cuts by the postal service that may slow down election mail. Listen now!

Charlie Gerstein

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