GOP Presses Supreme Court to Put Lawmakers in Driver's Seat for Future Elections

Lingering dispute over mail-in ballots could have far-reaching implications

2020 mail-in ballots sent through the U.S. Postal Service / Getty Images
January 5, 2021

President Trump has a chance to vindicate one of his core election complaints—that 11th-hour changes to voting rules usurped the constitutional authority of state legislatures—even if he won't overturn the election.

Pennsylvania Republicans are asking the Supreme Court to hear a challenge to about 9,400 mail-in ballots that arrived after Election Day during a three-day grace period set by the state supreme court. Republicans say the tardy ballots should be disqualified because the state legislature never authorized the relaxed deadline, and they want the Court to put state legislatures in the command position on election administration going forward.

That objection is common to many post-election legal disputes. State courts and election officials across the country relaxed voting procedures in the summer and fall, citing the coronavirus pandemic. Some orders tempered signature-verification rules or implemented no-excuse mail-in voting. The president and his supporters say that state legislatures alone set presidential election rules, making the last-minute tinkering unconstitutional.

The High Court's conservatives have shown sympathy for that view and could use the Pennsylvania case to set a precedent for future races if they decide to hear it. Several justices signaled interest in the case in late October, and Republicans have since retained an A-list of Supreme Court litigators to bolster their petition. The toxic air surrounding Trump's unfounded claims of election fraud, however, could deter the Court from getting involved.

Republicans turned to the justices in late September when the Supreme Court of Pennsylvania pushed the state's Election-Day deadline for mail-in ballots back to Friday, Nov. 6. The High Court turned down their appeal on Oct. 19. In a short separate statement, Justice Samuel Alito wrote that it was simply too late to get involved, but cautioned that the Court could revisit the dispute. He added that Pennsylvania Republicans seem to be in the right.

"The provisions of the federal Constitution conferring on state legislatures, not state courts, the authority to make rules governing federal elections would be meaningless if a state court could override the rules," the justice wrote. The Constitution provides that federal election procedures "shall be prescribed in each State by the Legislature thereof."

Justices Clarence Thomas and Neil Gorsuch joined that statement, and Justice Brett Kavanaugh endorsed its view in a separate case from Wisconsin. Justice Amy Coney Barrett's vote would make a majority for the position, though she has not addressed the issue in her writings from the bench. Such a ruling could forbid late-breaking, court-ordered changes to election administration of the kind that dominated the 2020 campaign.

The Pennsylvania GOP has since recruited lawyers from Jones Day to round out its legal team. Those hires include such heavy-hitting alums of Trump's Justice Department as Noel Francisco and John Gore, as well as veteran legal hand Mike Carvin.

State lawyers counter that the dispute is moot. With votes cast and election results certified, they say there's nothing left for the Court to resolve. Nor would the 9,400 contested ballots affect the outcome, since Biden carried the state by over 80,000 votes. The GOP says the justices should get out in front of the the issue, since similar events could reoccur in future elections.

"It is inevitable that this case will become a model for future litigation: having witnessed [the Democrats'] success in this matter, future litigants will surely try to obtain similar relief," GOP lawyers wrote in court papers.

Yet the president's conduct of late could diminish the petition's fortunes. Trump's quest to turn up evidence of election fraud has yet to register a single legal victory, and other options he's entertained to remain in office, such as pressuring congressional Republicans to contest election certification, are deeply dividing his own party. The High Court has shown no interest in the election-fraud drama, as when the justices quickly rebuffed a red-state lawsuit to undo election results in four swing states.

The Supreme Court's docket is set for the current term. The Court will likely hear the Pennsylvania case in late 2021 if it chooses to act. A decision would follow in spring 2022, well in advance of the midterms and the 2024 presidential election.

The justices could decide whether to hear the dispute as soon as Jan. 8. The case is No. 20-542 Republican Party of Pennsylvania v. Boockvar.