Next month, just after Joe Biden is set to win the final vote count for President, the Supreme Court will take a serious look at a constitutional dispute left over from the election campaign. The Court’s clerk on Wednesday sent to all of the Justices’ chambers, for discussion in private on January 8, two appeals on that question by Pennsylvania Republicans.
The issue, lingering in one form or another for decades, seems fairly simple: how much power do state legislatures have under the Constitution to control the conduct of presidential elections and are other state officials or state supreme courts barred from interfering with that power?
The Pennsylvania GOP leaders, relying on their reading of Supreme Court precedents that go back to 1892, insist that the Constitution gives state legislatures unchecked power to define the presidential contest at the polls. It is those lawmakers, the argument goes, that decide how presidential electors get chosen, not the governor, not election officials, not state courts. (As most Americans may now understand, in the wake of high-stakes fights over the presidency this year, it is the electors who actually choose the President, not the voters themselves.)
The electors chosen this year, on November 3, met on Monday of this week, and cast enough votes for Biden to win the presidency, 306 to President Trump’s 232 (it took 270 to win).
On January 6, the newly elected Congress will meet in joint session to count those votes, and as of now it appears that the 306 votes for Biden will be confirmed. The Pennsylvania case that the Justices are due to examine two days later is not likely to have any effect on what Congress does with the counting ritual.
In fact, the lack of any impact on the incoming President is being used by the Pennsylvania GOP leaders as a good reason why the Justices should step in now to settle the constitutional argument they have raised. The Court, they contend, can go ahead in coming weeks or months to decide the question, to settle it for future presidential elections, not the one just held.
There is a doctrine, invented by the Court itself more than a century ago, that would enable the Court to hear and decide that question, but only for the future. The idea, originated in a 1911 decision, allows the Court to rule on an issue even though it is no longer a live dispute because time ran out on it. It can be taken up afterward, if it is clear that it will arise again.
In new filings this week in the two Pennsylvania appeals, the lawyers for the GOP argued that the constitutional question will surely come up again, so it would be a good idea to settle it when that can be done without a pressing deadline.
One unusual facet of these cases is that the Justices have already had a couple of preliminary looks at the constitutional question, and four of them have shown an interest in it and suggested that it would be a proper one for the Court to answer now.
If they continue to hold that view next month, then the pending GOP appeals will have to be taken seriously. That is true even though the very issue got nowhere when raised repeatedly in attempts by President Trump and his allies to block President-elect Biden’s victory. Those losses, though, don’t dictate what happens when the Court takes another look on its own.
In many of the nearly five dozen cases that had unfolded in attempts to block Biden, there were significant procedural defects and jurisdictional gaps. That does not appear to be a significant problem for the Pennsylvania appeals, although state Democrats don’t concede that point.
One of the appeals is by the Pennsylvania Republican party, the other is an appeal by the four GOP leaders of the state legislature’s two chambers. The longest abiding precedent upon which they rely is a Supreme Court decision in 1892, prompted by the very close presidential election in 1876. In that ruling, MacPherson v. Blacker, the Court commented that the Constitution gives state legislature the primary role in devising presidential elections, and that cannot be taken away.
The Court repeated that view in 2000, in the decision in Bush v. Gore, settling the close election in favor of George W. Bush.
Invoking those comments, the Pennsylvania GOP appeals argue that their state legislature had written a law on how mail-in ballots were to be counted, but then the state Supreme Court stepped in and relied on the state constitution to provide some added opportunity for counting some of those ballots after the election was over.
The question now before the Court thus tests whether a state court’s interpretation of the state constitution can operate to modify what the legislature had declared to be the counting procedure. If the Court does take on the case for a decision, they might find themselves in the awkward position of having to second-guess how a state court interprets its own constitution – something that the Justices do not do, unless the state court’s action raises a federal constitutional question. The Pennsylvania GOP argues that that is exactly what happened this year.
In the Supreme Court’s prior actions, preliminary in nature, on the Pennsylvania appeals, that constitutional question was described as worthy of review by Justices Samuel A. Alito, Jr., Neil M. Gorsuch, Brett M. Kavanaugh and Clarence Thomas. If those four remain of that view, they have enough votes among themselves to grant review.
However, they would probably want to have some assurance that, when a final decision came down, they would have at least a five-vote majority to decide it. That would put the spotlight on the newest member of the Court, Justice Amy Coney Barrett, who was not on the Court when the four others made their prior comments about review of the dispute.
Republican leaders, including President Trump, have hoped that the Supreme Court with a newly solidified conservative majority, might wind up helping the President get reelected. The irony of what may happen with the Pennsylvania case is that, if the GOP were to win, it would be of no benefit to Trump because his loss in 2020 is now settled.