“We’d be happy to defeat you in court one more time.” Thus did Josh Shapiro, the Democratic attorney general of Pennsylvania, taunt President Trump in a weekend tweet. Shapiro was responding to the vow that Trump’s campaign would march into court on Tuesday night to stop the counting of mail-in ballots received after the voting is supposed to be over. Shapiro insists the state will persist until “all the votes are counted” — at least three more days, and maybe more.
So who is right, Trump or Shapiro? The answer is … we don’t know. And that is a frightening prospect if — as some polling suggests — the race has tightened in Pennsylvania and other battleground states.
At issue is an order by the Keystone State’s Democrat-dominated supreme court. By state law, mail-in and absentee ballots are supposed to be submitted to county election boards by 8 p.m. on Election Day, which is when the polls close for in-person voting. In response to the coronavirus pandemic, the state legislature took several steps to make it easier for people to vote, including permitting everyone to vote by mail. The legislation was a product of compromise, mainly between Democrats prioritizing mail-in voting and Republicans prioritizing election integrity under circumstances where unprecedented reliance on methods other than in-person voting creates obvious opportunities for mischief.
To ensure that the compromise remained intact (i.e., that neither side could undermine the deal by lawsuits that preserved their goals while vitiating their trade-offs), the legislature included a “non-severability” provision: If the 8 p.m. Election Day deadline for ballot submission were declared invalid, much of the rest of the legislation would be void — in particular, the liberalization of mail-in voting.
But then — and I know you’ll be stunned to hear this — politics broke out.
The state Democratic Party sought to pocket its gains on expansive mail-in balloting while enabling vote-counting to continue after Election Day. The state court’s Democratic majority duly complied, essentially rewriting the statute to permit the counting of ballots that arrive at election boards for three days after the election, through Nov. 6.
Even more promiscuously, the state court requires the boards to indulge a presumption of validity: If a ballot arrives without a postmark, or with an illegible postmark, it is to be treated as if it were postmarked on or before Nov. 3. Let’s put this in concrete terms: If publicly reported Election Night returns show Trump leading Biden by a narrow margin, Democrats could try, up until Friday, Nov. 6, to harvest non-postmarked ballots in sufficient numbers to overcome Trump’s lead.
“But wait,” you’re thinking, “what about that non-severability provision?” Well, the state court claims to have circumvented that with a bit of lawyerly razzle-dazzle. The four-justice majority reasons it is not claiming the Nov. 3 deadline it eviscerated was invalid; no, no, it’s just that courts must have discretion to deal with “natural disasters” — like a pandemic. Plus, since not all citizens are affected by COVID-19 the same way, the justices reckon the extension was somehow necessary to protect voters’ rights under the state constitution.
It is an absurd ruling. The U.S. Constitution (in Article II, Section 2, for presidential elections, and Article 1, Section 4, for congressional elections) expressly vests in state legislatures, not state courts, the rules under which federal elections are to be held. The only exception is Congress’s power to regulate such matters as setting the date of an election, which it has done by a formula long established in federal law. Pennsylvania’s legislature determined that ballots must be submitted by the time the polls close on Election Day, and Congress set Election Day as Nov. 3 — not Nov. 3, 4, 5 and 6.
Moreover, as the U.S. Supreme Court has noted repeatedly this year, the principal responsibility for dealing with the pandemic — and balancing the burdens it creates — lies with the political representatives who are accountable to the public: primarily, state legislatures and governors, not the politically unaccountable judiciary. The Pennsylvania legislature enacted several measures to allow people to vote safely, but it intentionally maintained the Nov. 3 deadline. There can be no election without deadlines, and the legislature’s action properly deferred to Congress’ power to set an Election Day for federal offices while safeguarding the integrity of the ballot count — minimizing the chance that it would be undermined by fraudulent voting after the polls close and returns are publicly announced.
Nevertheless, with the institutionally minded Chief Justice John Roberts at the helm and Democrats threatening to “pack the court” in protest of President Trump’s appointment of Justice Amy Coney Barrett, the U.S. Supreme Court has resisted wading into a controversy that could be perceived as dispositive of the presidential election. In the last two weeks, when it was vital to firm up the rules, the high court demurred. Prior to Barrett’s confirmation, Roberts voted with the court’s three liberals to create a 4-4 deadlock against issuing an injunction against Pennsylvania’s supreme court. Last week, with Barrett having just been confirmed and not yet participating, the court voted 5-3 against taking the case on an expedited basis.
In the latter decision, all the justices agreed that, as a practical matter, it was too late just five days before the election to resolve the case ahead of time. But this reality was only ruefully acknowledged by the court’s conservatives, who wanted to decide the case weeks ago but were stymied by Roberts.
Nevertheless, as Justice Samuel Alito noted in an opinion joined by Justices Clarence Thomas and Neil Gorsuch, this does not mean the antics of Pennsylvania Democrats can escape the high court’s review.
So finally, we come to Trump’s itching for a court fight, and why Pennsylvania’s AG Shapiro should not be so confident about what will happen if there is one.
It is disingenuous of Shapiro to portray what’s happened so far as a string of victories: He hasn’t won anything, and the state court hasn’t been vindicated. Instead, the U.S. Supreme Court has sat on the sidelines, declining to get involved. Roberts obviously hopes the election will be so one-sided that there will be no need for the court to hear the case, and thus no demagoguery about how justices are deciding the election, as there was after the 2000 Bush v. Gore mess.
Nevertheless, Justice Alito is realistically preparing for a hotly disputed case. He observed that “there is a strong likelihood that the State Supreme Court decision violates the Federal Constitution,” subsequently adding that the Court’s request was still in effect “that ballots received after election day be segregated so that if the State Supreme Court’s decision is ultimately overturned, a targeted remedy will be available.”
Alito prodded the Republican petitioners to ask that any ballots received after Nov. 3 be segregated and secured a representation from Shapiro that he gave “guidance” to county election boards that they should “segregate ballots received between 8:00 p.m. on November 3, 2020, and 5:00 p.m. on November 6, 2020.” Presumably, Pennsylvania will honor this representation to the court — which, Alito asserted, the GOP petitioners could ask the justices to order the state to do if there were any question about that.
If the presidential race is tight nationally, and Pennsylvania’s contest is close and potentially decisive, President Trump’s campaign could very well march into court, as promised. If that comes to pass, Pennsylvania’s Shapiro probably will not be as chirpy as he was this weekend. The U.S. Supreme Court’s intervention is overdue, but — if it happens — the state court’s lawlessness is apt to be overruled. That would mean a proper Election Day, not an Election Week that continues as long as it takes to push Joe Biden over the top.
Former federal prosecutor Andrew C. McCarthy is a senior fellow at National Review Institute, a contributing editor at National Review, and a Fox News contributor. His latest book is “Ball of Collusion.” Follow him on Twitter @AndrewCMcCarthy.