{"id":34922,"date":"2020-11-06T11:20:30","date_gmt":"2020-11-06T15:20:30","guid":{"rendered":"http:\/\/stateofthenation.co\/?p=34922"},"modified":"2020-11-06T11:20:30","modified_gmt":"2020-11-06T15:20:30","slug":"trump-is-practically-guaranteed-a-win-in-pennsylvania-after-legal-filings","status":"publish","type":"post","link":"http:\/\/stateofthenation.co\/?p=34922","title":{"rendered":"Trump is practically guaranteed a win in Pennsylvania after legal filings."},"content":{"rendered":"

Why Trump Will Triumph in PA Litigation<\/h1>\n

<\/p>\n

The State Supreme Court has Violated the US Constitution<\/strong><\/h3>\n

Alexander Macris<\/p>\n

If you\u2019ve been following the mainstream media, you\u2019ve probably read that Trump intends to file a lawsuit in Pennsylvania to \u201cstop counting votes.\u201d Most likely, this has been presented as an outrageous evil, unjustifiable by any standards of common decency, and grossly unconstitutional. Is that really the case? Or is it more complex than that?<\/p>\n

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There will be a lawsuit, no doubt; and it will involve a lot of votes being thrown out. The plaintiff (Trump and\/or the Republicans) will win, because Pennsylvania\u2019s highest court has almost certainly violated the Constitution of the United States. That\u2019s why, in the weeks ahead, the Supreme Court of the United States (SCOTUS) is going to rule in favor of Trump.<\/p>\n

Let\u2019s wind the clock back about a week to explain how we got here.<\/p>\n

On October 28, 2020, in\u00a0Republican Party of Pennsylvania vs. Boockvar<\/a><\/em>, SCOTUS declined \u201ca motion to expedite consideration of a petition for a writ of certiorari\u201d. Let\u2019s explain what that is, and what\u2019s at stake, and why Trump is going to follow up.<\/p>\n

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  1. A\u00a0writ of certiorari\u00a0orders a lower court to deliver its record in a case so that the higher court may review it.\u00a0 In this case, SCOTUS was being asked to issue a writ against the Supreme Court of Pennsylvania, the highest court in that state.<\/li>\n
  2. A petition [for a writ of certiorari] is a request by a litigant in the lower court, to a higher court, asking the higher court to order the lower court to issue the writ. In this case, the Supreme Court of Pennsylvania had decided against the Republican Party, so the Republican Party petitioned the Supreme Court of the US.<\/li>\n
  3. Petitions can take a long time to resolve. A motion [to expedite consideration of a petition] is a request, by a litigant who has filed a petition, that the higher court accelerate its process of review. In this case, the Republican Party had filed the motion to expedite.<\/li>\n<\/ol>\n

    Translated into common English: In\u00a0Boockvar<\/em>, the Republican Party sent a request to the US Supreme Court to review a lower court case, and then asked them to hurry up about it. The US Supreme Court declined the motion to expedite, e.g. it refused to hurry up. But – and this is very important – it did\u00a0not\u00a0<\/em>deny the petition for the writ of certiorari.<\/p>\n

    Thus the situation as it stands is that there is still a petition before the Supreme Court to review the situation in Pennsylvania, it just refused to do so before the election.<\/p>\n

    Now that raises the question: What\u2019s the situation in Pennsylvania? Let\u2019s work through that.<\/p>\n

    In 2019, the PA legislature passed a law called Act 77 that permitted all voters to cast their ballots by mail but (in Justice Alito\u2019s words) \u201cunambiguously required that all mailed ballots be received by 8 p.m. on election day.\u201d The exact text is\u00a02019 Pa. Leg. Serv. Act 2019-77<\/a>, which stated: \u201cNo absentee ballot under this subsection shall be counted which is received in the office of the county board of elections later than eight o’clock P.M. on the day of the primary or election.\u201d I agree with Justice Alito: That is unambiguous.<\/p>\n

    Act 77 also provided that if this portion of the law was invalidated, that much of the rest of Act 77, including its liberalization of mail-in voting, would also be void. The exact text is: \u201cSections 1, 2, 3, 3.2, 4, 5, 5.1, 6, 7, 8, 9 and 12 of this act are nonseverable. If any provision of this act or its application to any person or circumstance is held invalid, the remaining provisions or applications of this act are void.\u201d<\/p>\n

    To again put this into common English, the Pennsylvania legislature passed a law that said mail-in ballots had to arrive by 8PM on election day to be counted, and then said that if the Court over-ruled that law, the entire law that permitted mail-in ballots was invalid.<\/p>\n

    In the face of this clear text, the Pennsylvania Supreme Court, by a vote of four to three, made the following decrees,\u00a0summarized here by SCOTUS:<\/a><\/p>\n

      \n
    1. Mailed ballots don\u2019t need to be received by a election day. Instead, ballots can be accepted if they are postmarked on or before election day and are received within three days thereafter.\u00a0Note that this is directly contravenes the text above.<\/em><\/li>\n
    2. A mailed ballot with no postmark, or an illegible postmark, must be regarded as timely if it is received by that same date.<\/li>\n<\/ol>\n

      In doing so, PAs\u2019 high court expressly acknowledged that \u201cthe statutory provision mandating receipt by election day was unambiguous\u201d and conceded the law was \u201cconstitutional,\u201d but\u00a0still re-wrote the law\u00a0<\/em>because it thought it needed to do so in the face of a \u201cnatural disaster.\u201d It justified its right to do so under the Free and Equal Elections Cause of the PA State Constitution.<\/p>\n

      Now, if you are a conservative, you are already angry. You despise this method of jurisprudence, which elite Harvard lawyers might call \u201cliving Constitutionalism,\u201d and you believe that judges should enforce laws as written by lawmakers. You believe this case never should have gotten to SCOTUS because what the State Supreme Court did was egregious! .<\/p>\n

      However, if you\u2019re of a more liberal inclination, you\u2019re probably happy with this outcome. You\u2019re happy because it\u2019ll help Biden win, of course; but in general, you\u2019re likely to be fine with a high court establishing a new right if you think it protects oppressed people from majoritarian tyranny.<\/p>\n

      If you\u2019re a committed progressive, in fact, you likely will want to dismiss the entire case as just another defeat for outdated textualism in the face of living constitutionalism. It\u2019s easy to frame this case as one of reactionary judges clinging to the letter of the law, while progressive justices overturn the letter of the law to reflect its true spirit. This is the view that CNN and MSNBC are promoting.<\/p>\n

      Had the Pennsylvania Supreme Court simply ruled that Act 77 was unconstitutional under PA\u2019s Free and Equal Elections clause, this would have been a classic \u201ctextualism\u201d vs. \u201cliving constitutionalism\u201d case. But it\u2019s not.<\/p>\n

      There is a strong likelihood that the State Supreme Court decision violates the Federal Constitution. Justice Alito writes: \u201cThe 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 adopted by the legislature simply by claiming that a state constitutional provision gave the courts the authority to make whatever rules it thought appropriate for the conduct of a fair election.\u201d<\/p>\n

      Justice Alito is referring to the following clauses of the US Constitution:<\/p>\n