Trying to educate myself about that Pennsylvania election controversy

I hesitate to write about the Supreme Court litigation in Pennsylvania Republican Party v. Boockvar, since I have not been following it closely and I had been relying on the apocalyptic coverage of the case online. (The Court denied 4-4 a stay of a Pennsylvania Supreme Court decision allowing the counting of certain contested ballots after Election Day.) But last night I tried to educate myself by reading the briefs and I came away a little confused.

The briefs have a constitutional argument about the constitutional definition of “legislature” in Article II that I’ve seen a lot of writing about online. But the briefs lead off with a different argument, based on a federal statute that sets a uniform election day. As I understand this statutory argument, it is that 1: it is a violation of federal law to count ballots cast after election day, 2: the Pennsylvania Supreme Court decision creates too high of a risk that ballots cast after election day will be counted, and 3: other cases where ballots are counted after election day contain safeguards against late-casting that are not present here.

This argument seemed plausible to me, but is made most cogently in the Republican Party’s reply brief so the parties didn’t get a chance to answer it. I haven’t seen much substantive explanation of the legal flaws in this argument online, so I am wondering. What is wrong with it? (I read one commentator say that the statute isn’t relevant because it doesn’t have a private cause of action, but I believe it’s being raised as a defense.)

I assume something must be wrong with it, given the coverage of the case as borderline frivolous. I’ll try to update this post once I learn what it is.

UPDATE:

Other responses to the statutory argument I’ve encountered are:

-- the dissenting Justices must have accepted the constitutional argument, not the statutory argument. I still don’t understand why this would be so. But in the new cert petition and stay application the constitutional argument does get much more extensive billing, so maybe that is where this case is headed.

-- this would imperil the counting of overseas votes and lots of other situations where ballots are received after Election Day. As I understand it the Republican Party says that these situations are distinguishable, because they are only challenging ballots that are cast late, not those that are received late.

— this really comes down to what procedure to use to determine when a ballot is cast, and the statute is simply silent about that. Therefore the states get to decide. This seems like the best response to the statutory argument I’ve read so far.

I think the Republican Party’s response would be: 1, the state must employ some safeguard against late casting of ballots, whether a certification, a postmark, or something else, 2, the legislature did employ such a safeguard, so the court can’t throw it out. But the former is still somewhat vague and the latter potentially reduces to the constitutional argument all over again.

Anyway, as noted above, the next round of this litigation seems to focus even more on the constitutional argument, so maybe all of this self-education was for naught.

Financial Oversight and Management Board for Puerto Rico v. Aurelius, very belatedly

This is the complete opposite of timely, it being older than my newborn child, but I realized I never got around to posting a link to my commentary on Financial Oversight and Management Board for Puerto Rico v. Aurelius, in which the Court upheld the constitutionality of the appointment of the officials in charge of overseeing Puerto Rico’s bankruptcy under PROMESA. My remarks are 10 minutes long and you can listen here.

As you’ll know if you’ve seen any of my previous blog posts on the case, I make three basic points.

First, there is the question of whether territorial officers are officers of the United States. I argue no, for reasons that I wrote about in this article (which Justice Thomas was kind enough to cite in his concurring opinion).

Second, there is the question of whether the officers in question were indeed territorial officers. Everybody on the Court concluded yes, and that seems plausible to me, though I don’t have a firm view.

Third, there is the question of whether there are any other constitutional constraints on the appointment of territorial officers. Justice Sotomayor raised one such argument in her separate opinion, and I have raised a different argument, analogous to a Chadha problem, but neither one was briefed or decided by the Court.

Post-script: I’ve since come across some interesting commentary by Professors Josh Blackman and Seth Barrett Tillman, raising the possibility that the board members are instead “officers under the authority of the United States” and also noting the perhaps-unanticipated consequences the Court’s decision has for impeachment of territorial officers.

Countries Are Sloppy About Signing BITs, revisited

There are countless stories of countries not caring very much about the Bilateral Investment Treaties (BITs) that they sign. Here’s one example I found for a paper I wrote a few years ago:

The United States signed a BIT with Senegal in 1983 and with Morocco in 1985. These BITs were both approved by the United States Senate on October 20, 1988. By 1990, however, these two partners had still not ratified the agreements. During a hearing held by the Senate Committee on Foreign Relations, Senator Sarbanes asked a State Department Official why Senegal and Morocco had not yet ratified the agreements. The assistant Secretary of State replied by saying that “my understanding is that both governments were looking for an auspicious occasion on which to ratify the agreement, some ceremony. I didn't know this until this morning.” In response, Senator Sarbanes asked: “Would a visit by you be deemed such a sufficient occasion, do you think?” In response, McAllister replied: “I would certainly think so. But I would hope we could do it before that.” This is revealing because Senegal and Morocco were willing to wait over three years to ratify agreements that are reportedly designed to attract investment so that they could have a signing ceremony with even a relatively obscure U.S. official.

The literature is filled with these kind of anecdotes, but most of them are about the process of treaties being signed in a sloppy way. A couple of weeks ago, however, an arbitration panel issued a decision in a dispute with a truly bonkers procedural history that shows countries don’t even pay much attention to BITs even after they are signed.

Here’s the story. In 2014, a man from South Africa brought an international investment dispute against Mozambique. The case was ostensibly brought under a BIT between South Africa and Mozambique that provided for investor-state dispute settlement. Five (!!!) years later, after lengthy proceedings, a motion to dismiss filed by Mozambique was granted. The reason? It turns out the BIT between South Africa and Mozambique never went into force.

But it took Mozambique a while to actually figure that out. In 2016, Mozambique filed a merits brief “totaling 160 pages [that] raised multiple objections to jurisdiction (in 90 paragraphs spread over 46 pages). Nowhere in these did Respondent even hint that the BIT had not entered into force.”

And if it isn’t bad enough that a dispute could drag on for years before it was clear there wasn’t even a valid treaty, here’s the conclusion of the decision:

h/t to @MatthewMorantz for highlighting this wild case.