Pennsylvania lawmakers in 2019 decided to allow postal voting for the first time. They adopted a statute stipulating that “a completed ballot paper must be received at the county election board office no later than 8 p.m. on the day of the primary election or election.” In 2020, the state Democratic Party went to court, claiming that the deadline in light of the Covid pandemic “results in an as-used violation” of the right to vote.
The Democrat-dominated Pennsylvania Supreme Court – its members elected by party political elections – took sides and ordered an extension of the deadline, although it acknowledged that the statutory language was clear and unambiguous. The U.S. Supreme Court declined to hear an appeal, so the 2020 election was conducted under this and other new, judge-imposed rules.
Normally, there is no reason for the High Court to review a state court’s decision on state law. But the election law is different. The U.S. Constitution gives this state a mandate legislative congregations make the laws governing federal elections to Congress and the presidency. The Pennsylvania judgment was therefore unconstitutional. But the judges in Washington, perhaps, chastised by the ongoing political controversy about Bush v. Gore (2000), seems reluctant to take such cases up close to an election. Fortunately, they will soon have the opportunity to address the problem and avert the possibility of an election meltdown in 2024.
Pennsylvania was not alone in 2020. Faced with Republican control of many state legislatures, Democrats and their allies took advantage of the pandemic to change that year’s voting process. Long-running items on the wish list, such as almost universal postal voting, “collection of ballot papers”, delivery boxes, extended deadlines and loose requirements for identification and signature matching, came about in large parts of the country, often by state court order.
The pandemic disruption may be behind us, but lawsuits over election rules continue. One reason is the success of the Democrats’ 2020 efforts, which their current cases consider a new legal baseline. Returning to common pre-pandemic procedures, they argue, is tantamount to illegal “voter repression.”
But there is another reason for the explosion of state lawsuits: redistribution after the 2020 census. If state judges are willing to guess the voting legislation, why not the cards too? New cards are often sued, but what is different this time is the number of cases asking the courts to throw out alleged partisan gerrymanders. The U.S. Supreme Court closed the door on such claims under the Federal Constitution in Rucho v. Common Cause (2019), justified by the fact that there was no “clear, manageable and politically neutral” standard for courts to apply. The same objection applies to cases brought under state law, however Rucho did not address that issue.
So they spread. Many states where Democrats could pick up seats with a different card have faced lawsuits based on open state constitutional provisions, such as North Carolina’s proclamation “all elections must be free.” The supreme courts of several states have thrown cards out of the legislature; North Carolina judges even authorized a lower court to hire its own cardmakers. Republicans won state court rulings against Democratic Gerrymen in the states of Maryland and New York.
None of this is constitutional. State courts can interpret and apply laws governing federal elections and consider challenges to them under federal law, including the Constitution. But they have no authority to enshrine these laws under state constitutions, let alone an independent power to formulate their own voting rules and congressional cards. The U.S. Constitution often confers powers and duties on “states” in general, but Article I’s election clause stipulates that “times, places, and manner” for conducting congressional elections shall be “prescribed in each state by its legislature” unless disregarded by Congress. The election clause similarly provides the “way” to elect presidential candidates in the “legislature”.
IN McPherson v. Blacker (1892) the U.S. Supreme Court acknowledged that the voter clause “leaves it to the legislature to define the method” of electing voters solely, and that this power “cannot be taken from them or modified by their state constitutions.” IN State Legislature v. Arizona Independent Redistricting Commission (2015) it stated that “redistribution is a legislative function that must be performed in accordance with state regulations for legislation.”
Yet it is no wonder that plaintiffs and state judges have felt brave in avoiding these restrictions. The decision of a state supreme court can only be appealed to the US Supreme Court, which has dispensed with such cases. Around the same time that the judges refused to hear the Pennsylvania case in 2020, they rejected a request to block North Carolina officials from changing legally agreed voting deadlines. This year, they rejected emergency requests to block judge-made cards in North Carolina and Pennsylvania from being used in November.
Suffrage cases present unique timing considerations given the potentially disruptive consequences of changing laws or cards as an election approaches. When the courts make changes weeks before an application deadline or election day, the judges’ ability to correct the wrong is severely limited. There is rarely a serious basis for pushing the issue after votes have been cast. These conditions apply in most electoral cases.
But unlike state court rulings that interfere with voting procedures, which typically only apply to one election, congressional cards remain in place until they are changed, which is not usually the case for a decade. So there is no timing issue that prevents the court from dealing with a redistribution case.
Judges Samuel Alito, Clarence Thomas and Neil Gorsuch dismissed last month’s rejection of the application for residence in North Carolina, arguing that the case was a good means of considering the power of state courts to recast federal election laws. Judge Brett Kavanaugh wrote separately to say the court should take a case that raises the issue, but this one came too close to the 2022 election. North Carolina’s House speaker has asked the court to take the case in its next term. If it does, a decision is likely to come next summer, almost a year and a half before the 2024 election.
The court’s failure to resolve this issue could be a disaster. If the presidential vote in 2024 is close in crucial states, the result will be a rush of lawsuits combining all the worst features of the 2000 and 2020 election controversies. enough that smart lawsuits, backed by state judges, can push it up and seize electoral benefits. To avoid a constitutional crisis, judges need to articulate clearly that state courts cannot rely on state constitutions or their own judicial power to change either congressional redistribution cards or voting rules in federal elections.
Sir. Rivkin served in the Department of Justice and the White House law firm in the Reagan and George HW Bush administrations. Mr. Grossman is an adjunct researcher at the Cato Institute. Both practice appeals and constitutional law in Washington.
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