- REAL CLEAR POLICY - Nov 12, 2020 -
Pennsylvania’s vote count is a chaotic mess. Pennsylvania’s governor, attorney general, and secretary of state have performed poorly and in highly partisan fashion. But matters are much worse thanks to the Commonwealth’s Supreme Court and Chief Justice Roberts.
Many have noted that the Supreme Court has been consistent this summer and fall in ruling that federal courts cannot, through judicial decree, change duly enacted election laws. In cases involving federal intrusion into state lawmaking power, Chief Justice Roberts, along with fellow conservative Justices Thomas, Alito, Gorsuch, and Kavanaugh, concluded that state statutes control.
If a state’s law says that absentee ballots need to be received by election day to be counted, federal courts cannot extend this deadline. This not only makes sense but is consistent with the U.S. Constitution, which delegates exclusive authority to state legislatures to establish the rules of the road for presidential elections. Judicial interference with election rules creates confusion and undermines the legitimacy of the will of the people as expressed through the state legislature’s duly enacted laws.
While the other four justices appear to conclude that this principle applies for state courts, the Chief Justice believes otherwise. Chief Justice Roberts distinguished himself from the other justices last week when he refused to consider the Supreme Court of Pennsylvania’s decision to extend the receipt deadline for mailed ballots. This squarely defied an unambiguous statutory deadline. While the Chief thinks it’s okay to stop federal courts from changing election laws, he appears to think state courts are free to do so.
Roberts is showing deference to state courts in interpretation of their own state laws. Normally, that is a wise approach, but not, as explained here, when the state's law is part of a regulatory framework established by the U.S. Constitution- Article II, Sec. 1. The national interest in a transparent and honest electoral system outweighs any deference owed to a state court blatantly ignoring the clear words of the statute. Why is it unconstitutional for federal courts to overturn legitimate state election laws but constitutional for state courts?