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| Frances Goins |
As a result, those cases that have been heard have been summarily dismissed by the respective trial courts in the various states. There is no obvious path to the U.S. Supreme Court for those cases, and, as has been widely reported, they appear unlikely to change the outcome of the election.
One case filed before the Nov. 3 presidential election, however, remains pending in the U.S. Supreme Court. This case bears further scrutiny because it has the potential to continue the myth that the U.S. Supreme Court is the final arbiter of disputed presidential election results.
In Republican Party of Pennsylvania v. Boockvar,[1] the Supreme Court initially rejected the Pennsylvania Republican Party's demand for an emergency injunction to stop the state of Pennsylvania from counting mail-in ballots received after Election Day in conformance with a decision of the Pennsylvania Supreme Court interpreting Pennsylvania law.
Since the vast majority of mail-in ballots appear to have been cast for the Democratic candidates for president and vice president, if the court had granted the requested emergency relief, the outcome would almost certainly have favored the Republican ticket, moving Pennsylvania and its 20 electoral votes to the Trump column.
The Supreme Court denied the emergency motion, but Justice Samuel Alito, who is responsible for the circuit that includes Pennsylvania, entered an order requiring the state to count but segregate the later-received ballots so that they could be further scrutinized if the court were to eventually accept the pending petition for certiorari and enter a judgment in favor of the Pennsylvania Republican Party on the merits.
Traditionally, and in the interest of comity, the federal courts have deferred to the rulings of state courts interpreting state law. Particularly among the ranks of purported constitutional strict constructionists, deference is accorded to state judges.[2] Presumably, as with other state laws, the interpretation of state election law by the state's highest court should be accorded this same high degree of deference.
The statement issued by Justice Alito — and joined in by Justices Clarence Thomas and Neil Gorsuch — in Republican Party of Pennsylvania v. Boockvar in support of his order to segregate ballots indicates a strong inclination by these avowed "strict constructionists" to follow the reasoning of Bush v. Gore to overturn the Pennsylvania Supreme Court's interpretation of Pennsylvania law, should the full court grant the Pennsylvania Republican Party's pending petition for certiorari.
In the guise of interpreting the equal protection clause of the U.S. Constitution, Justice Alito dismissed the Pennsylvania Supreme Court's interpretation of Pennsylvania law and the state constitution's free and equal elections clause that it determined gave the state supreme court the authority to respond to the natural disaster created by the current pandemic by extending the deadline for receipt of mail-in ballots to protect the rights of Pennsylvania voters.
Justice Alito's reasoning relies on Bush v. Gore and a tortured reading of Article II, Section 1 of the U.S. Constitution that addresses the appointment of state-sponsored electors in presidential elections. Article II, Section 1, Clause 2, states:
Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or Person holding an Office of Trust or Profit under the United States, shall be appointed an Elector.[3]
This provision says nothing whatsoever about how individual popular votes are to be collected or counted. Yet, in the Bush opinion, and as echoed by Justice Alito, a purportedly strict constructionist majority of the court interpreted this clause to mean that only a state's legislature — not its courts — could determine the rules for counting individual votes, notwithstanding how the relationship of those bodies might be determined under the particular state's laws.
Likewise, Title 3 of the U.S. Code, Section 5, also referenced by the Supreme Court, only addresses the appointment of state electors and does not mention the popular vote.
Notwithstanding Justice Alito's attempt to justify this opinion by invoking the Constitution, it is almost impossible to reconcile this reasoning with a strict reading of the language of that document.
Indeed, considering the whole of Article II, it is clear that any disagreement as to a state's choice of electors is to be settled by Congress, not by the Supreme Court. The framers' choice of the elected representatives of the voters over the appointed judiciary for this purpose was likely intended to avoid just such political shenanigans.
Regardless, the entire exercise would be easier to swallow had the justices in question not painted themselves as the guardians of the language of the Constitution, opposed to so-called judicial activism and expansion of any provisions not specifically written into that sacred document.
At this point in the process, it appears that Biden has a comfortable lead in most of the swing states, and that even a later Supreme Court decision along the lines presaged by Justice Alito in the Boockvar case will not change the final result. Nevertheless, it would be the height of hypocrisy for the court to set aside the results in Pennsylvania based on a strict construction of wholly imaginary language that does not appear anywhere in the Constitution.
It is time for the conservative justices on the court to come clean as to their reasoning and motives, and stop hiding behind the rubric of strict constructionism.
Correction: An earlier version of this article included an incorrect title for contributor Lauren Garretson. The error has been corrected.
Frances Floriano Goins is a partner at Ulmer & Berne LLP and a member of the American Bar Association's Election Law Advisory Committee.
Ulmer & Berne law clerk Lauren Garretson contributed to this article.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, the American Bar Association, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
[1] 592 U.S. ___ 2020, 2020 WL 6304626.
[2] "[T]he Court 'accord[s] respectful consideration and great weight to the views of the State's highest court.'" Bush v. Gore
, 531 U.S. 98, 137 (2000) (Ginsberg, J., dissenting), citing Indiana ex. rel. Anderson v. Brand , 303 U.S. 95, 100 (1938).[3] Justice Alito also references, mysteriously, Article I, Section 1, cl. 1, which does not even refer to presidential elections. ("The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators. The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.")
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