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.