Alito, conservative justices are fighting old ghosts in Pa. Count all the ballots | Bruce Ledewitz

The U.S. Supreme Court in Washington D.C. (Flickr Commons)

In September, the Pennsylvania Supreme Court, in an opinion by Justice Max Baer for a 4-3 court, extended the day that mail-in ballots could be received.

As long as such ballots were mailed by election day, Tuesday, Nov. 3 and received by Friday, Nov. 6, the ballots would be counted. The U.S. Supreme Court subsequently refused to stay the decision.

But this refusal was misleading. Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch, wrote that “there is a strong likelihood” that the three-day extension of receipt of ballots ordered by the Pennsylvania Supreme Court “violates the Federal Constitution.”

Justice Alito spoke only for three justices. But, since Justice Brett Kavanaugh had already voted once to block the extension, and Justice Amy Coney Barrett has since joined the court’s conservative wing, most observers concluded that, after the election, there would probably be a five-justice majority to strike down the three-day extension.

Secretary of State Kathy Boockvar, prudently ordered county board of elections to segregate ballots received during the extension in case the Supreme Court ultimately rules them invalid.

Voters in Pennsylvania undoubtedly heard that the extension was uncertain and many heeded calls to hand-deliver mail-in ballots or fill them out at polling places on election day so they would be received on time. But media reports did not explain why Alito believed the three-day extension was unconstitutional.

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Alito, and the other conservative justices on the court, believe they are refighting the battle of Bush v. Gore, from 2000. Unfortunately, he has misread what the Pennsylvania Supreme Court actually did. The situation this time is not same as in Bush v. Gore.

Alito is actually fighting the ghost of Bush v. Gore.

To understand this, it is necessary to return to the circumstances of 2000. Liberals think of Bush v. Gore as the case in which a conservative Supreme Court majority handed the presidential election to George Bush.

But conservatives remember the situation differently. They think of it, as conservative constitutionalist Randy Barnett tweeted last week, as “a partisan majority on the Florida Supreme Court trying to steal a presidential election.”

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After the election ended, a bare majority of the Florida Supreme Court ordered a count of so-called “under votes,” which were ballots that voting machines had rejected. This was the problem of the famous “hanging chads.” In dissent, Florida Chief Justice Charles Wells charged that this action had “no foundation in the law of Florida.”

The U.S. Supreme Court ultimately halted that count in Bush v. Gore. A majority of the Court ruled, in an unsigned opinion, that this partial and discretionary count violated federal Equal Protection, a holding so unconvincing that it has never since been cited in deciding a case.

Justice Alito did not rely on this Equal Protection rationale. Instead, he cited a principle from a concurrence by Chief Justice William Rehnquist, joined by Justices Antonin Scalia and Thomas—that the Florida Supreme Court had substituted its judgment for that of the Florida legislature, in violation of Art. II, Section 1 of the Constitution, which gives state legislatures the authority to determine how Presidential electors are chosen.

Alito similarly objected that the three-day extension at issue now “squarely alters an important statutory provision enacted by the Pennsylvania Legislature pursuant to its authority under the Constitution.”

Under the heat of another presidential election, held, if anything, in an even more partisan environment, Justice Alito assumed that the situation in Pennsylvania is the same as that in Florida in 2000. He should have noticed, however, that there are crucial differences.

For one thing, on the only issue that could render the Pennsylvania decision unconstitutional—altering the terms of the election statute—the Pennsylvania Supreme Court was not divided on ideological or partisan lines, but was unanimous. All of the justices agreed that the election timeline set forth in Act 77 could not be met. The timeline of one week was too short.

In effect, the statute gave the people of Pennsylvania two rights: one was to request a mail-in ballot by Tuesday, Oct. 27 and the second was to have that ballot counted if the voter acted promptly and mailed it back so that it would be received by Nov. 3, at 8 p.m.

All of the justices understood that, under the current circumstances, a voter exercising the first right would lose the second.

The solution for the dissent, authored by one of the most liberal Justices on the court, Justice Christine Donahue, and joined by the court’s two Republicans, Chief Justice Thomas Saylor and Justice Sallie Updike Mundy, was to move the application deadline back to Friday, Oct. 23. That way, there would be enough time to mail any ballot back so that it would arrive before 8 p.m. on election day.

But, under Alito’s interpretation, Donahue’s dissent also would have unconstitutionally altered the statute, which makes no sense. The statute had to be altered one way or the other. It could not be applied as written. That kind of statutory interpretation is a normal judicial role.

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Second, Baer’s majority opinion cited precedent in which a lower court in 1987 had held that the Election Code authorized the courts to delay an election because of a flood. Baer concluded that the emergency existing because of COVID-19 and the resulting strain on the U.S. Postal Service was analogous under the state’s emergency statute.

This was not a case in which a state court ruled that “a state constitutional provision gave the courts the authority to make whatever rules it thought appropriate for the conduct of a fair election” as Alito complained.

The major role that the state constitution played in the decision was in providing a “remedy” for the statutory impasse. Extending the mail-in date, rather than contracting the request date, was held by the majority to constitute a fuller protection of the right to a “full and free election” in Art. I, Section 5 of the Pennsylvania Constitution.

Clearly, we would have been better off if the court had adopted Donohue’s remedy of pushing back the application date. If that had been done, there would be no cloud over Pennsylvania’s presidential voting.

Nevertheless, the Pennsylvania Supreme Court majority was not setting aside the work of the Legislature. It was saving the statute.

Alito and the new conservative majority are anxious to write the Rehnquist concurrence in Bush v. Gore into law. They may well be right in upholding the authority of the Legislature. But they are seeing ghosts in this instance. The Pennsylvania holding is not the case in which to enshrine the Rehnquist principle.

Opinion contributor Bruce Ledewitz teaches constitutional law at Duquesne University Law School in Pittsburgh. His work appears biweekly on the Capital-Star’s Commentary Page.  Listen to his podcast, “Bends Toward Justice” here