It has now been posted on the Supreme Court’s docket for the case that Justice Alito has directed the attorneys for Pennsylvania to file a response to GOP Congressman Kelly’s Emergency Application for an Injunction to prevent the naming of Electors for Joe Biden by December 9. That date is meaningful.
The “Safe Harbor” provision for naming Electors is December 8. What that means is that Congress must accept as valid — without allowing any challenge — the Electors named by a State on or before December 8 if those Electors were chosen in the manner prescribed by state law. The Pennsylvania state officials are not, at this time, prevented by any court order from naming Electors for Joe Biden, and presumably, they will do so on or before December 8 as a result of the popular election which is the manner prescribed by the Pennsylvania legislature for naming Electors. That means those Electors must be accepted by Congress when the Electoral College reports the outcome of their vote.
Justice Alito’s order likely means there are not 5 votes to grant the emergency injunctive relief and prevent the naming of Pennsylvania’s electors — at least not with respect to the complaint filed by Congressman Kelly seeking to declare the entire “vote-by-mail” scheme enacted by the Pennsylvania legislature as a violation of Pennsylvania’s Constitution.
But the fact that he has ordered Pennsylvania to respond does suggest that there may be some sentiment in the Court to take up the case — likely in combination with other cases now before the Court regarding the Pennsylvania election process. It just won’t grant the injunctive relief that would be needed to give any kind of retrospective remedy that Cong. Kelly and the other plaintiffs are seeking. The easy justification for the Court is there is simply not enough time for the Court to take on such a monumental challenge given the stakes. AND, while the Court MIGHT agree that on the merits that the “vote-by-mail” scheme is invalid, there is no purpose in doing so at this point in time given the significant likelihood that it may only be Pennsylvania that ends up being flipped, and the outcome of the election remains the same. So, to do so on an accelerated timeframe, where briefing, research, and opinion drafting would have to occur at “warp speed”, is simply too much to ask.
It is impossible to know at this point, but the meaningful question that might be asked is why the Kelly complaint was filed on November 21 — eighteen days after the election. The honest truth might be that the nature of the legal claim was not recognized such that filing the complaint earlier was possible. That would be understandable. But if the interests involved in filing that complaint knew on Election Day that such a complaint was valid, they should have filed it on November 4.
There is no point now in waiting for SCOTUS to rescue Pennsylvania via the Kelly case, and as a likely consequence there is much diminished — probably nearly non-existent — expectation that SCOTUS will make an effort to involve itself in sorting out the ugly “political” process that is underway in other states either. It could have acted weeks ago on the other pending case from Pennsylvania involving the extended ballot receipt deadline and failed to do so. But the same practical consideration likely applies there as well — the Penn. Supreme Court’s decision was limited to the Nov. 2020 election only, and the total number of ballots received by the State after the statutory deadline of 8:00 pm on Nov. 3 was insufficient to change the outcome of the vote by themselves so there is no urgency to address the issue of the Penn. Supreme Court’s order. The Court can accomplish whatever it needs to accomplish in rebuking the Penn. Supreme Court — if it deems it necessary to do so — by acting after the election is over.
Voting is a political process that involves individual rights. There are mechanisms in each state for legally contesting the voting process and vote count procedures. It is incumbent upon the parties and the candidates to pursue their remedies in those forums, and the Supreme Court is not the “Court of First Resort” to seek to correct errors.
The bigger problem we have as a nation is that we are acquiescing to voting processes that are not capable of being verified and tested in a meaningful fashion during the time period available under the statutes and Constitutional provisions that determine how Presidents are selected. The voting process is captive to partisan political interests with a motivation to bend it to their needs. Then, when their actions are questioned, those raising the concerns learn that all the “evidence” that might establish what took place is within the control of the same partisan actors, and everything becomes subject to efforts to “run out the clock” on any bona fide challenges.
The country needs uniform voting standards and procedures across all 50 states. The security and integrity protocols need to be the same across all 50 states. The audit and electoral contest procedures need to be the same across all 50 states.
“Convenience” to the voter needs to be way down the list of considerations about how the voting process takes place, and can never be a justification for sacrificing security. Make Presidential Election day a national holiday once every four years so the vast majority of citizens do not need to try to “work it in” to their schedule.
And the overriding consideration for voting integrity needs to be that each invalidly cast vote is the embodiment of the violation of the right to vote of a legitimate voter who chose another candidate, regardless of party.
THAT is the ultimate disenfranchisement, and it corrupts democracy when partisan interests encourage such acts in order to secure power.