The dilemma of the Pennsylvania injunction request
on Nov 7, 2020 at 1:32 pm
The Pennsylvania Supreme Court has ruled that mail-in ballots received within three days of Election Day will be counted and presumed to have been timely mailed. That ruling interprets the state constitution to invalidate a state statute that requires mail-in ballots to be received by Election Day.
Pennsylvania Republicans argue to the contrary that the legislative deadline is controlling because the U.S. Constitution gives state legislatures the authority to determine how to count votes for president — unconstrained by the state constitution.
So far, the U.S. Supreme Court has declined to get involved. It denied Pennsylvania Republicans’ applications (1) for a stay of the state court ruling (by a 4-4 vote, before Justice Amy Coney Barrett was confirmed), and (2) to expedite their petition for certiorari (with newly confirmed Barrett not participating because she did not have time to consider the application).
On Friday, Pennsylvania Republicans essentially renewed their stay request, in a slightly different form. They sought an injunction requiring the county canvassing boards to (1) segregate the late-arriving ballots, and (2) not count them.
The Republicans’ injunction request explains that 25 canvassing boards might not be segregating the ballots. The Pennsylvania secretary of state has issued “guidance” that they should, and a majority of the boards have said that they will follow that guidance. No board has indicated that it will not comply. But the Republicans represent in their application that 25 of the boards haven’t said one way or the other.
Justice Samuel Alito, who handles emergency applications from the geographic area that includes Pennsylvania, issued essentially an administrative order granting the former — not the latter — until the full court could decide the request. Alito directed that responses to the application be filed Saturday afternoon.
For reasons that I give below, I think the full court needs to take extraordinary care before granting the application (even in part). But I first want to lay out some premises to assume that there are reasons that the court would want to grant it.
I assume that a majority of the court would agree with the Republicans on the merits and would reverse the Pennsylvania Supreme Court — i.e., they would hold that the federal Constitution requires enforcing the state legislative deadline for receiving mail-in ballots. Four justices strongly signaled that they agree with that view when they dissented from the denial of the stay application. I assume Barrett would agree as well, as might Chief Justice John Roberts (who voted against the stay) if he reached the merits.
I also assume that the court has not decided against reviewing the issue. Instead, it has declined to get involved so far because it may make no difference to the outcome of the election. Given the current vote count, it is extremely unlikely that the late-arriving ballots will be decisive. But if that turned out not to be true, I assume a majority of the court would grant certiorari and reverse.
I also assume that the court would want to ensure that it could effectively issue that decision. That is possible only if the late-arriving ballots are kept as separately identifiable.
Notwithstanding all those assumptions that support the application, I think that the full court has to be extremely cautious in granting it. The reason is that the court is essentially being used by opposing political forces for their own ends. And that is happening in ways that make the stakes much higher than merely keeping some ballots in separately marked tubs.
When the court acts, particularly on an emergency basis without detailed opinions, the subtleties are lost on the general public. An order granting an injunction with respect to certain ballots inevitably is read as a statement that the court sees some serious flaw in the election process. And an order issued by a court that is closely divided on ideological lines is inevitably read as the justices simply enforcing their own political preferences.
So, if the court grants an injunction, the president and his supporters will use that order as part of an effort to delegitimize the election. Democrats will use it to delegitimize the court itself.
If an injunction is truly necessary, those are simply the costs of our system of laws. The fact that a necessary ruling by the court can be misconstrued is no excuse not to issue it. The court can’t be held hostage to strategies to manipulate public opinion.
But even with all the assumptions I laid out above, for several reasons, it does not seem that an injunction is necessary here. First, these votes are beyond exceptionally unlikely to make a difference. The election has been called. In turn, it is very unlikely that the court is going to hear the challenge to the Pennsylvania Supreme Court’s ruling.
Second, the Pennsylvania Republicans present an insufficient premise to issue an injunction: There is no evidence that any canvassing board is not already segregating the late-arriving ballots.
Third, the Republicans have another avenue for relief. They can ask the state courts. Importantly, the state courts can find out whether there are any boards not actually segregating these ballots. If so, which seems unlikely, they can decide the threshold, unresolved question whether state law requires the boards to follow the secretary of state’s guidance. The state courts could also issue an order requiring that the ballots be segregated, given that four justices have indicated that they would grant certiorari.
Indeed, the court’s overwhelming practice is to require a party seeking interim relief like an injunction to first seek relief in the lower courts. But that did not happen here. To be sure, the Pennsylvania Supreme Court denied a stay of its ruling, but the injunction the Republicans are seeking is different in its details. And it remains unclear whether any injunction is necessary at all.
Given all that, and the high stakes for the public’s perception of the court, there seem better options for addressing the Republicans’ serious concerns with the late-arriving ballots. The court can leave the administrative stay in place for a day, in order to give Republicans time to go to state court, and otherwise deny it without prejudice. Anything more is likely to be caricatured for the general public as calling the election into question and a partisan power play in support of the president.