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Home » Too little, too late, and not over yet: Pennsylvania voting law change found unconstitutional

Too little, too late, and not over yet: Pennsylvania voting law change found unconstitutional

The New Neo Posted on by

There were a great many rule changes in Pennsylvania prior to the 2020 election that were challenged in court by Republicans, but in most of the cases the higher courts declined to hear them. Now, way after the fact, one of those rule changes has been declared unconstitutional by the Pennsylvania Commonwealth Court.

I think we can safely predict that the decision will appealed to the Pennsylvania Supreme Court, a strongly leftist institution, which will reverse it. I may sound too confident in that prediction, and of course nothing is absolutely certain, but this particular result is highly likely. Then I believe it will go to SCOTUS, and if previous experience is any guide, the Court will decline to hear it. [CORRECTION: It may be that it will never go to SCOTUS, because the case concerns the interpretation of the state constitution.]

I don’t know the details of the case, so maybe that part of my prediction is wrong and something distinguishes this election law case from the others they first declared unready and then declared moot. I wrote about one example in this post from February of 2021, when SCOTUS dismissed a similar challenge (on a slightly different topic) as moot. Here is some of what dissenting Justice Clarence Thomas had to say back then:

The Pennsylvania Legislature established an unambiguous deadline for receiving mail-in ballots: 8 p.m. on election day. Dissatisfied, the Pennsylvania Supreme Court extended that deadline by three days. The court also ordered officials to count ballots received by the new deadline even if there was no evidence—such as a postmark—that the ballots were mailed by election day. That decision to rewrite the rules seems to have affected too few ballots to change the outcome of any federal election. But that may not be the case in the future. These cases provide us with an ideal opportunity to address just what authority nonlegislative officials have to set election rules, and to do so well before the next election cycle. The refusal to do so is inexplicable.

One wonders what this Court waits for. We failed to settle this dispute before the election, and thus provide clear rules. Now we again fail to provide clear rules for future elections.

And Justice Alito had this to say back then:

…[T]he cases now before us are not moot. There is a “reasonable expectation” that the parties will face the same question in the future, see Wisconsin Right to Life, Inc., 551 U. S., at 463, and that the question will evade future pre-election review, just as it did in these cases. These cases call out for review…

The present Pennsylvania case cries out for SCOTUS review as well. More here [my additions in brackets]:

The court’s decision essentially made the case that any law to make mail-in ballots universal versus only being allowed in defined circumstances needed to come via an amendment to the state’s constitution, given the current [narrow language of the state constitution on the matter]. That was the same case former President Donald Trump’s legal team attempted to make. Unfortunately, the courts at the time brushed off their challenge. Now, though it’s far too late to change things, there is some vindication happening on that front.

As I noted, the vindication is only in this lower court. The decision of the highest Pennsylvania court is almost a foregone conclusion. What really matters is whether SCOTUS will accept this case, and if so what it will rule. [CORRECTION: Same as in paragraph 2; it may be that it can’t be appealed to SCOTUS.] I think the rule change was clearly unconstitutional due to the language of Pennsylvania’s constitution – but then again, I’m not a SCOTUS justice.

[ADDENDUM: Note the corrections. It makes sense to me that the case will never go to the Supreme Court, because any ruling rests on an interpretation of the Pennsylvania constitution, and the Pennsylvania Supreme Court would seem to be the final arbiter of that. I’ve searched to find a definitive answer but have been unable to locate one. However, I did find this article which indicates the following:

The Commonwealth Court ruling Friday is likely to fuel momentum among Republicans to enact more restrictive voting laws. [Democrat Governor] Wolf’s term ends in January 2023, and the Republicans running to succeed him have vowed to repeal Act 77 and described election security as a top priority — including enacting stricter voter ID requirements and abolishing no-excuse mail voting.

What I infer from that is that the Pennsylvania legislature could enact stricter requirements, but that until the post of governor is in Republican hands, such as effort would be futile because it would be vetoed. So they’re setting their sights on the 2022 election and hope to get a Republican governor in there starting in January of 2023.]

Comments

Too little, too late, and not over yet: Pennsylvania voting law change found unconstitutional — 17 Comments

  1. Courts meddle a great deal. They don’t protect us very much.

    You wonder to what extent we’re in a situation analogous to France ca. 1786. All these self-involved Bourbons and their crooked, poseur institutions. The courts, higher education, the media, the politicians.

  2. America at present is in many ways a fascinating lab experiment. I don’t think we’ve ever had a government that was so obviously illegitimate, nor a press supporting it that was so thoroughly dishonest and evil.

  3. I think that you are probably right about the PA Supreme Court. By the way, it will most likely end up redistricting our state since the map drawn by our state legislature was just rejected by the Dem governor as “too partisan.” I think the definition of “too partisan” is “not created by Democrats to make their every dream come true.”

  4. neo – If I understand correctly, the appellate court held that the statute violated the PA Constitution. If the PA Supreme Court reverses, that’s it. The US Supreme Court will not reverse a state supreme court on the interpretation of that state’s constitution. I think the PA cases before the election were different because they were about whether the PA Supreme Court’s rulings violated the federal Constitution.

  6. “The Pennsylvania Legislature established an unambiguous deadline for receiving mail-in ballots: 8 p.m. on election day.

    Dissatisfied, the Pennsylvania Supreme Court extended that deadline by three days.”

    In doing so, the Pennsylvania Supreme Court delegitimized itself. Now, they shall further extend their corrupt criminality.

    Banned Lizard,

    “I don’t think we’ve ever had a government that was so obviously illegitimate, nor a press supporting it that was so thoroughly dishonest and evil.”

    No more accurate term than treason can be laid upon their behavior.

  9. Almost unanimously, Republicans, who controlled both chambers in the state legislature, supported Act 77. Why? It included a provision which eliminated the straight party line check box on the ballot. In a state where Democrats enjoy a 500,000 voter registration advantage, this apparently would work in favor of down ballot incumbents. The concession made was the expansion of mail-in ballots beyond the absentee type. At the time the measure passed I.e. Pre-Covid, Trump looked assured of winning the state. Ultimately, Act 77 sealed his fate. Republicans retained control of the legislature but may lose one chamber as a result of redistricting where the Democrat-controlled Supreme Court could be the determining factor as it was in 2016 when it redrew congressional districts to the advantage of Democrats.

  10. “they were about whether the PA Supreme Court’s rulings violated the federal Constitution.”

    Which they unambiguously DID. The Constitution specifically states that election rules are set by the Legislature; the PA bureaucracy disregarded them. QED.

    Taney Court 2.0 under Roberts made it quite clear that Civil War will be required, by taking the jury box out of play.

  11. I think what the PA Supreme Court has done is to destroy the structure of the state government. The other benefit of the bargain that Republicans made on Act 77 was to place time limits on the receipt of mail-in ballots. Republicans were willing to do vote-by-mail, but didn’t want to have to wait until a week after the election to even know how many ballots had been cast, for obvious reasons. Republicans even included an anti-severability clause in the law, saying that if any part of the law violated the state or federal constitutions, the whole law should be struck down.

    Gov. Wolf made that deal and then had his allies march straight to the courts, who ignored the anti-severability clause and threw out the parts of the deal that the Republican legislature bargained for while keeping the parts that the governor wanted. So the governor and state SC basically cut the legislature out of the governing process.

    Wolf is doing the same thing with redistricting. The State SC held recently that the PA constitution basically requires a pro-Democrat gerrymander. So now, instead of negotiationg with the GOP legislature, Wolf is content to let the PA SC draw the new districts too because he knows the PA SC map will be more favorable to Democrats than anything he could negotiate with the legislature.

    For what its worth, I think comments like those from SDN above are inflammatory and counterproductive, but they are a completely natural reaction to the perversion of the structure of our government that progressives are engaging in now. The left is playing with fire. The trick for the right is to find a way to fight the fire without burning the house down.

  12. Also, PA is one of those states where it is ridiculously easy to amend the state constitution. PA just amended its state constitution by majority vote during the primary in May to strip Wolf of his emergency COVID powers (i.e., the referendum didn’t even have to take place during a general election).

    I think mail-in voting is a bad idea, but even if this law is struck down, an amendment permitting mail-in voting will almost certainly pass in the next election cycle.

  13. Bauxite:

    I’m wondering, if amending the PA constitution is so easy, why didn’t they do it for that voting change? Was it that they didn’t want to make it permanent? Was it supposed to just be a temporary COVID measure?

  14. I’m not sure. I think that it was probably because of timing and the desire to put the mail voting in place before the 2020 election. Act 77 passed in October of 2019. I’m not sure they would have had time to pass a constitutional amendment by referendum during the the 2020 primaries and then have an implementing act in place by November of 2020. That’s my guess at least.

  15. @ Bauxite > “Gov. Wolf made that deal and then had his allies march straight to the courts, who ignored the anti-severability clause and threw out the parts of the deal that the Republican legislature bargained for while keeping the parts that the governor wanted.”
    Cue the “Lucy, Charlie Brown, and the Football” comic strip.

    Unlike the probably apocryphal commendation of LBJ (“he was a politician who stayed bought”), the Democrats no longer feel that they have to abide by their word
    after an agreement is reached (Obama was a master of the tactic). Without fidelity to the trade-offs that make bipartisan legislation possible at all, the entire structure of representative government breaks down, as we have seen all too well.

    And yet, despite repeated instances of betrayal, Democrats complain that Republicans are obstructionists and won’t negotiate!

    Clearly, they do not believe that the GOP knows the optimum Game Theory scenario for repeated games, and certainly don’t think they will apply it.
    https://cs.stanford.edu/people/eroberts/courses/soco/projects/1998-99/game-theory/axelrod.html

    In 1980, Robert Axelrod, professor of political science at the University of Michigan, held a tournament of various strategies for the prisoner’s dilemma. He invited a number of well-known game theorists to submit strategies to be run by computers. In the tournament, programs played games against each other and themselves repeatedly. Each strategy specified whether to cooperate or defect based on the previous moves of both the strategy and its opponent.

    Some of the strategies submitted were:

    Always defect: This strategy defects on every turn. This is what game theory advocates. It is the safest strategy since it cannot be taken advantage of. However, it misses the chance to gain larger payoffs by cooperating with an opponent who is ready to cooperate.

    Always cooperate: This strategy does very well when matched against itself.
    However, if the opponent chooses to defect, then this strategy will do badly.

    Random: The strategy cooperates 50% of the time.
    …
    The winner of Axelrod’s tournament was the TIT FOR TAT strategy. The strategy cooperates on the first move, and then does whatever its opponent has done on the previous move. Thus, when matched against the all-defect strategy, TIT FOR TAT strategy always defects after the first move. When matched against the all-cooperate strategy, TIT FOR TAT always cooperates.

    This strategy has the benefit of both cooperating with a friendly opponent, getting the full benefits of cooperation, and of defecting when matched against an opponent who defects. When matched against itself, the TIT FOR TAT strategy always cooperates.

    Several variations to TIT FOR TAT have been proposed. TIT FOR TWO TATS is a forgiving strategy that defects only when the opponent has defected twice in a row. TWO TITS FOR TAT, on the other hand, is a strategy that punishes every defection with two of its own.
    …
    It must be realized that there really is no “best” strategy for prisoner’s dilemma. Each individual strategy will work best when matched against a “worse” strategy. In order to win, a player must figure out his opponent’s strategy and then pick a strategy that is best suited for the situation.

    As many have remarked, the GOP leadership, and many members of Congress, appear to have been playing TIT FOR INFINITE TATS, and caving to Democrats whenever possible, whether for personal or alleged policy reasons, a strategy that is sometimes labeled “This is never the hill to die on.”

    However, the Trump years have made the game matrix a lot more clear, and at least some Republicans don’t intend to play by the Left’s rules any longer, as clearly stated by Nick Freitas, a GOP representative to the Virginia House of Delegates.

    https://www.thenewneo.com/2022/01/28/the-coming-scotus-fight-those-racist-and-sexist-republicans-that-noble-biden/#comment-2604558

    To see an analysis of the Axelrod Optimum in action, read this post from last year.
    https://www.businessinsider.com/fight-over-infrastructure-bills-is-a-prisoners-dilemma-2021-9

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