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Pennsylvania Republicans’ Latest Supreme Court Brief Focuses on Future Elections


Appearing to finally (maybe?) come to terms with the results of the 2020 election, the Republican Party of Pennsylvania on Tuesday asked the U.S. Supreme Court to decide whether the Electors Clause of the Constitution prohibits state courts from altering election deadlines set by the state’s legislature in future contests. In fact, the GOP said the current case was an “ideal vehicle” for deciding the issue “precisely because it will not affect the outcome of this election.”

“Respondents’ Oppositions rely primarily on the argument that, because Pennsylvania has certified the results of the 2020 general election, the case is an improper vehicle,” attorneys for the party wrote. “To the contrary—as nineteen States have agreed—the case is an ideal vehicle because it gives the Court the opportunity to provide crucial guidance on these important and recurring questions for future elections, outside of the context and constraints of a hotly disputed current election.”

The brief essentially contends that Pennsylvania’s Supreme Court violated the Electors Clause with rulings that implemented election rules not sanctioned by the legislature. Specifically, Pennsylvania Republicans point to the court’s order in a case filed by the Pennsylvania Democratic Party (PDP) directing officials to count mail-in ballots received up to three days after Election Day unless it could be shown that such ballots were sent after Nov. 3.

The Electors Clause, in Article II, Section 1, lays out how states appoint electors to the Electoral College. It reads, in relevant part, “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors […]” The GOP asserts that this language in the clause should be interpreted to mean that a state’s legislature—and only a state legislature—has the sole authority to determine how presidential electors will be selected in that state.

“As to the extension of the received-by deadline, PDP and the Secretary assert that states have free reign to impose substantive limitations on the legislature’s authority over federal elections,” the brief stated. “But if that were true, the Electors and Elections Clauses would be a dead letter. Indeed, nothing would prevent a state from adopting a constitutional provision that stripped the legislature of all authority to set the rules of federal elections and reallocated that authority to the state executive branch or judiciary. This cannot be.”

Pennsylvania Republicans are being represented in the matter by attorneys from the law firms Porter Wright Morris & Arthur, and Jones Day. Both firms came under attack for their representation of the Trump campaign in post-election litigation.

UC Irvine law professor and election law expert Rick Hasen said that the justices may very well grant certiorari on the petition, lamenting that it would be “very bad news for election reform.”

Read the full petition below.

PA GOP Scotus Brief by Law&Crime on Scribd

[image via Chip Somodevilla/Getty Images]

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Jerry Lambe is a journalist at Law&Crime. He is a graduate of Georgetown University and New York Law School and previously worked in financial securities compliance and Civil Rights employment law.