Third time’s the charm? The Supreme Court has punted twice on the issue of Pennsylvania’s decisions to ignore statutory deadlines and signature requirements for ballot counting. Republicans once again petitioned for their intervention after the state proceeded with the ballot counting while violating those statutes. Late yesterday, the Trump campaign joined the lawsuit, and the Supreme Court instructed Pennsylvania to respond — and pronto, reports the Washington Times:
The Supreme Court ordered Pennsylvania Democrats to respond by Thursday evening in a case challenging the state’s three-day extension for counting mail-in ballots.
President Trump has moved to intervene in a lawsuit brought by Pennsylvania Republicans, arguing the state’s Democratic Party and Secretary of State violated the law by extending the time for counting mail-in ballots to Nov. 6 at 5 p.m., despite the state legislature setting the deadline as Election Day.
That suggests that the now-complete court has at least four members who want to take these issues up a third time. That’s no big surprise, since the earlier pass on the deadline issue came on a 4-4 split that left in place the state supreme court decisions overriding the statutes. Had John Roberts stuck with the conservatives/textualists on the court then, Pennsylvania could have avoided the issue altogether by instructing voters to walk in their ballots by Election Day instead. That’s exactly what Minnesota did after the Eighth Circuit put the kibosh on a deadline extension issued by the Secretary of State, and Election Day went without a hitch here.
The deadline also suggests that at least four of the justices want a chance to rule on this before the state adds those ballots to the rest of the votes. For the moment, those ballots are still being sequestered by order of the state supreme court. The state is likely to commingle them after the deadline passes, so any action the Supreme Court takes will have to be decisive and quick. But will it be decisive or quick? Legal observers are somewhat skeptical:
“The hope is that these Hail Mary legal plays could lead to court intervention to throw out votes and help Trump capture one of these states. This is possible but very unlikely,“ UC Irvine law Professor Richard Hasen said Wednesday on his “Election Law” blog.
One reason, he said, is that even a Trump legal victory in Pennsylvania, the state whose case has already reached the high court, may not be enough to affect the results either statewide or nationwide. If Democrat Joe Biden holds his lead in other contested states, including Nevada and Arizona, he would not need Pennsylvania to win the White House. …
Michael McConnell, a Stanford constitutional law professor and former federal appeals court judge, said Wednesday he could not think of any valid legal argument to stop ballot-counting.
“At most, courts might order that Trump representatives be permitted to observe if they are being wrongfully excluded, and perhaps even to review some of the ballots already counted,” but not to halt the counts or discard the ballots, McConnell said. “If Biden wins without Pennsylvania, I think we will be spared the 2000 spectacle.”
Worth noting: McConnell was appointed to the appellate bench by George W, Bush in 2002, and was considered a leading contender for a future Supreme Court nomination. He’s also an originalist, and an outspoken originalist at that. Had Bush nominated McConnell instead of John Roberts, we might have a very different looking court today.
McConnell turned out to be prophetic about the issue of observers in Pennsylvania. An appellate judge has ordered the state to provide access to the ballot counting:
AND NOW, November 5, 2020, upon review of arguments contained in briefs submitted by Donald J. Trump for President, Inc. (Appellant), the Philadelphia County Board of Elections, and the Pennsylvania Democratic Party, it is hereby ORDERED that the November 4, 2020 order of the Court of Common Pleas of Philadelphia County (trial court) denying Appellant’s oral motion to allow closer observation of the canvassing of ballots is REVERSED. The matter is REMANDED to the trial court to enter an ORDER no later than 10:30 a.m. today, November 5, 2020, effective immediately, requiring that all candidates, watchers, or candidate representatives be permitted to be present for the canvassing process pursuant to 25 P.S. § 2650 and/or 25 P.S. § 3146.8 and be permitted to observe all aspects of the canvassing process within 6 feet, while adhering to all COVID-19 protocols, including, wearing masks and maintaining social distancing. Opinion to follow.
Team Trump heralded this as a victory:
“In a major victory for election integrity, election transparency, all Pennsylvania voters, and the rule of law, the Trump Campaign has prevailed in our suit challenging our Republican poll watchers’ complete lack of any meaningful access to the ballot processing and counting process.
“The eyes of the country are on Pennsylvania, but Pennsylvania Democrats, led by their radical left Secretary of State whose only goal is to steal this election from President Trump, has kept eyes off of the absentee ballot counting process. That ends now in Philadelphia.
“As a result of this incredible legal victory, the lower court’s order has been reversed. Now, according to the Commonwealth Court of Pennsylvania, ‘all candidates, watchers, or candidate representatives’ shall ‘be permitted to be present for the canvassing process’ and ‘be permitted to observe all aspects of the canvassing process within 6 feet, while adhering to all COVID-19 protocols, including, wearing masks and maintaining social distancing.’
“For the good of the nation, every Pennsylvania county should follow the lead of this judge and provide access for observers to ensure transparency and integrity in Pennsylvania. That is the only way to ensure a fair, transparent election in which all Pennsylvania voters can have confidence their vote will count.”
Observers from both parties should have had access to this process all along. It won’t stop the process, though, so the impact of this victory will be limited to just information gathering for the big legal issue. Stay tuned to see whether the Supreme Court’s originalists intervene … or agree with McConnell.
Update: Why are Democrats appealing an order to allow observers from both parties?
New update, via @MSNBC: Pa. Dems have gone to Pa. Supreme Court to appeal that observers case; Philly count has been halted as a result.
— ByJohnLMicek (@ByJohnLMicek) November 5, 2020
That’s very odd. If this halts the count, it makes it easier for the Supreme Court to intervene, too.
Update: Micek corrects his reporting — it was the city of Philadelphia that appealed the decision, not the Democrats. Supposedly it was over COVID-19 distancing:
A new update from me: The city of Philadelphia filed the appeal, not Pa. Dems. Count was halted so that officials could determine the safe 6-foot distance to stand to observe the counting process, per Pa. Democratic Party.
— ByJohnLMicek (@ByJohnLMicek) November 5, 2020
That doesn’t make a lot of sense, though. The order explicitly required everyone to adhere to safety guidelines for COVID-19. They already are supposedly doing this in the counting rooms … so why appeal the order at all?