JEFFERSON CITY, Mo. – Attorneys general from 10 states have filed an amici brief in litigation undertaken by the Republican Party of Pennsylvania against the Secretary of the Commonwealth, over the submission deadline of mail-in ballots in the 2020 Presidential Election.
Missouri Attorney General Eric Schmitt and the chief law enforcement officials of the states of Alabama, Louisiana, Arkansas, Mississippi, Kentucky, South Carolina, South Dakota, Texas and Florida are collectively urging the Supreme Court of the United States to grant writs of certiorari and reverse a decision by the Supreme Court of Pennsylvania, which allowed mail-in ballots to be received three days after Election Day, even without postmarks.
“The Pennsylvania Supreme Court’s decision overstepped its constitutional responsibility, encroached on the authority of the Pennsylvania legislature, and violated the plain language of the Election Clauses. Worse still, the decision exacerbated the risk of mail-in ballot fraud by permitting mail-in ballots that are not postmarked or have no legible postmark, to be received and counted several days after the election,” the brief explained.
“The decision provided a window of time after Election Day, when the preliminary results were announced, in which unscrupulous actors could attempt to influence a close Presidential election in Pennsylvania and elsewhere. And it enhanced the opportunities for fraud by requiring boards of elections to count late-received ballots even if there is no evidence that those ballots were cast before Election Day, because they have no legible postmark.”
The brief presents three main arguments for the U.S. Supreme Court’s consideration:
• First, that the Pennsylvania Supreme Court usurped the authority of the legislature in ruling that ballots received three days after election can be accepted, including ballots with an illegible postmark or no postmark at all;
• Second, that voting by mail can create risks of voter fraud, including in Pennsylvania;
• And lastly, that the Pennsylvania Supreme Court decision exacerbated these risks of absentee ballot fraud.
“For the first argument, the brief states that the decision by the Pennsylvania Supreme Court, “(1) Admitted that the Legislature’s Election Day deadline was unambiguous, (2) Conceded that the Election Day deadline was constitutional on its face, (3) Relied on the slimmest of evidentiary rationales for its decision, (4) Departed its own prior holding on the exact same question just a few months earlier, and (5) Disregarded an admirably clear severability clause that was enacted by the Pennsylvania legislature for the very purpose of preventing Pennsylvania courts from making such post-hoc changes to Pennsylvania’s mail-in voting system,” the brief states.
The signers to the brief argued that the Election Clauses clearly delegate authority to state legislatures to regulate federal elections, “as a structural check on governmental power that preserves liberty” and that “encroachment on this authority by another state actor undermines the specific design for separation of powers in the Constitution.”
“The violation of separation of powers in this case threatens the liberty of all Americans, not just Pennsylvanians. And it diminishes one of their most precious liberties – the right to vote for President of the United States,” according to the brief.
The brief comes just after Democratic presidential nominee Joe Biden and vice-presidential nominee Kamala Harris were declared the winners of the 2020 Presidential Election on Saturday, as Pennsylvania’s 20 electoral votes put Biden over the threshold of 270 needed to win the race.
President Donald Trump has refused to concede the election to Biden, and attorneys for the president and his campaign continue to explore legal remedies in various state and federal courts, particularly in states where vote counts remain disputed, to overturn the result.
U.S. Supreme Court case 20-542
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com