Election 2020

Republican AGs to SCOTUS: Overturn Illegal Pennsylvania Ballot Extension

The U.S. Supreme Court building, Wikimedia Commons, Daderot.

The Pennsylvania Supreme Court violated the Constitution when it extended the deadline for mail-in ballots for three days past Election Day, Republican attorneys general argued in a press conference on Monday. The Republican Attorneys General Association (RAGA) held a press conference announcing that ten state AGs had signed on to Missouri’s amicus brief urging the Supreme Court to consider the case and strike down the ballot extension. Attorney General Dave Yost (Ohio) filed a separate brief and Mike Hunter (Okla.) is expected to file one later today.

Attorney General Jeff Landry (La.) cried foul on the Pennsylvania Supreme Court, comparing its actions to the actions of a referee who decides to change the rules of a football game in the middle of playoffs.

“We believe it’s akin to the referees getting to change the rules of the game midway through the football game,” Landry said. “We believe that’s exactly what the Pennsylvania Supreme Court did. The referees, the judges, do not get to write the rules.”

Attorney General Eric Schmidt (Mo.), who is leading the 10 states in the amicus brief, extended the analogy. He cited the Constitution, Article I Section IV, which states that “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”

“The Pennsylvania General Assembly expanded early voting options, but then made clear that all ballots should be received by Election Day,” Schmidt explained. “The Pennsylvania Supreme Court rewrote that law. They created an overtime — extended the period of time by which those ballots can be received.”

The amicus brief urges the Supreme Court to take up two joint cases against Secretary of State Kathy Boockvar (D-Pa.), namely Republican Party of Pennsylvania v. Boockvar and Joseph Scarnati et al. v. Boockvar.

The Pennsylvania GOP and Scarnati allege that the Pennsylvania Supreme Court violated the Constitution when it extended the deadline to receive ballots. While the state legislature mandated that ballots must be received by 8 p.m. on Election Day, the court ordered the state to extend the deadline to receive ballots by three days. The court also ordered the state to accept ballots during that window even if they were not post-marked.

The U.S. Supreme Court refused to take up the Pennslyvania GOP’s request to roll back the overreach before the election, but Associate Justice Samuel Alito ordered Pennsylvania county boards of election to segregate the ballots received after 8 p.m. on Election Day. The secretary of state in Pennsylvania had issued guidance to that effect, but Alito gave force to that guidance.

Schmidt, the Missouri attorney general, briefly laid out his case against the state Supreme Court’s order, calling it a “violation of federalism and separation of powers” and an attack against “election integrity in the broadest sense.”

The amicus brief defends the separation-of-powers provision in Article I Section IV, warns of the unique risks of fraud associated with mail-in voting, and claims the Pennsylvania Supreme Court’s decision “exacerbated the risks of ballot fraud.”

Hunter, the Oklahoma attorney general, called the Pennsylvania Supreme Court decision “one of the most breathtaking abuses of judicial authority that I’ve seen.” He argued that attorneys general from other states “have the responsibility to address that kind of abuse of power,” even when it takes place in a separate state.

Landry urged the U.S. Supreme Court to restrain an “out-of-control state supreme court” in this case.

“Once all legitimate votes are counted and irregularities are corrected, then regardless of who the president is, the rule of law will be protected,” he declared.

Democratic nominee Joe Biden currently leads President Donald Trump in Pennsylvania by almost 45,000 votes. Most media outlets have called the state for Biden, allowing the Democrat to clinch the 270 electoral votes required to win the presidency. While the president’s challenges to the vote counts should be taken seriously, it is unlikely they will overcome this deficit.

Even so, it is important for the rule of law and for the American people that all serious challenges receive their day in court. If Biden truly wishes to be a president for all Americans, as he claims, he should not dismiss serious concerns about the integrity of the election.

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Tyler O’Neil is the author of Making Hate Pay: The Corruption of the Southern Poverty Law Center. Follow him on Twitter at @Tyler2ONeil.

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