Election deadlines in post-constitutional America
In October of 2019, the General Assembly of the Commonwealth of Pennsylvania enacted Act 77 of 2019. This extension to Pennsylvania's Election Code provided that all residents could avail themselves of "no excuse mail-in voting." A key part of the Act is Section 1308 (g)(1)(ii):
An absentee ballot cast by any absentee elector ... or a mail-in ballot cast by a mail-in elector shall be canvassed in accordance with this subsection if the absentee ballot or mail-in ballot is received in the office of the county board of elections no later than eight o'clock P.M. on the day of the primary or election. [Italics added.]
I'm not a lawyer, but I've been using the English language for several weeks now, and I'd say that last clause pretty much sets a deadline for the receipt of mail-in ballots in Pennsylvania, and in the general election of 2020, that deadline would have been on November 3. Even so, the deadline wasn't good enough for Democrats, so they sued.
On September 17, the Pennsylvania Supreme Court ruled that the deadline set by the Assembly would be extended three days past the lawful deadline set by PA's legislature. There are 68 instances of the word "deadline" in the decision written by Justice Max Baer.
There may be a lot that one could find fault with in PA's election laws, but the deadline provided by Act 77 isn't one of them. The deadline was set more than a year before the 2020 general election. And, since COVID-19 figured in Baer's decision, let's note that the deadline also preceded the advent of the pandemic. So does the high court in PA have the authority to override the state Legislature and create its own deadline?
As the U.S. Constitution's Elections Clause makes clear, the power to regulate elections is vested in state legislatures and Congress, not the Judiciary. In creating a deadline, the General Assembly did not create an impediment to voting. If voters don't trust the U.S. Postal Service, they can use drop boxes. The PA high court has gotten out of its lane; its decision needs to be overturned by the U.S. Supreme Court, and the vote count must be reset.
On October 28, SCOTUS allowed Pennsylvania to accept mail-in ballots that arrive after the Nov. 3 deadline. There were no dissents in the decision, but Adam Liptak wrote that "three justices said the court might return to it after Election Day." The U.S. Supreme Court might be receptive to such a suit, for on Friday, Michael Ruiz of Fox News reported: "Supreme Court Justice Samuel Alito has issued a temporary order requiring Pennsylvania elections officials to segregate ballots received after 8 p.m. on Election Day."
If one turned on Fox News at noon on Saturday (Nov. 7), one saw that the media had called Pennsylvania for Biden and had declared Biden the president-elect. But there are still five weeks before the Electoral College has its say. Let's remember that Al Gore's contesting of the 2000 election lasted for more than five weeks.
Regardless of the odds of having these results overturned, President Trump's team of lawyers should continue their effort to have all ballots received after the lawful Nov. 3 deadline subtracted from the total. Those ballots were counted only because of an unconstitutional judicial usurpation of legislative authority.
The Trump team's challenges need to go forward for three reasons. The first reason is to get Biden's vote total down. If Pennsylvania is taken out of Biden's column and a recount in Georgia goes for Trump, Biden's margin then becomes 270 Electoral votes, the narrowest possible win. Where's Biden's "mandate" then?
The second reason for contesting this election is the need for "electoral hygiene." No sentient hominid can trust the vote totals in American elections. I'm sorry if that might be sowing the seeds of doubt, but Americans have little reason to believe in our election results other than the "authorities" tell us they're correct. That's not good enough.
The third reason for contesting this election is the possibility, however arduous or remote, of victory. It ain't over, folks.
IMPORTANT REFERRAL: I started writing the above before the weekend. On his Sunday night (Nov. 8) show on FNC, Mark Levin touched on some of the same issues. It was a particularly excellent show, and Mark had two terrific guests: Ken Starr and Hans von Spakovsky. I urge everyone who is disturbed by the irregularities of this election to watch the whole hour-long show. Mr. Levin's show usually re-airs on Saturdays, but the website for Life, Liberty & Levin has a Full Episodes option. The 8-minute video below should whet your appetite for the whole show:
Jon N. Hall of ULTRACON OPINION is a programmer from Kansas City.
Image: PA Assembly.