In a rush to count mail ballots and ensure Democrat Joe Biden is elected, Pennsylvania has created an illegal two-tiered voting system for the 2020 General Election, devaluing in-person votes. For voters that appeared at the polls, those citizens were required to sign voter registrations, have those signatures checked against voter rolls, vote in a polling place monitored by statutorily authorized poll observers, and have their votes counted in a transparent and verifiable open and observed manner.By contrast, due to the arbitrary, unauthorized, and standardless actions of the Secretary of the Commonwealth of Pennsylvania, Kathy Boockvar, nearly 2.65million votes were cast through a “mail-in” process that lacked all of transparency and verifiability.
Here's what they are up to. The Pennsylvania Supreme Court in an exercise of its powers as a court of equity approved counting votes mailed by November 3 if they were received by Friday November 6. Ballots without a postmark were to be presumed mailed by the 3rd if received by the deadline date.
Because the federal Constitution's Article I, Section 4 refers to the Legislature the Republicans complain that no departure can be made from the language used by the Legislature. The United States Supreme Court in 2015 rejected the argument that a popular referendum creating a redistricting commission is unconstitutional because Article 1, Section 4 says that state Legislatures shall manage the time, place and manner of elections. The unsuccessful challengers took the word Legislature literally. Ariz. StateLegis. v. Ariz. Indep. Redistricting Comm'n (2015).
But the Arizona majority included Anthony Kennedy and Ruth Ginsburg. The principal dissent was by John Roberts who derisively argued that by the logic of the majority the 17th Amendment was unnecessary:
"What chumps! Didn’t they realize that all they had to do was interpret the constitutional term “the Legislature” to mean “the people”? The Court today performs just such a magic trick with the Elections Clause. Art. I, §4. That Clause vests congressional redistricting authority in “the Legislature” of each State. An Arizona ballot initiative transferred that authority from “the Legislature” to an “Independent Redistricting Commission.” The majority approves this deliberate constitutional evasion by doing what the proponents of the Seventeenth Amendment dared not: revising “the Legislature” to mean “the people.”
Neil Gorsuch was first to bruit the theory in this election season. In his concurring opinion staying a similar ruling by a federal judge in Wisconsin. Brett Kavanaugh developed the argument further, saying: "the text of Article II means that “the clearly expressed intent of the legislature must prevail” and that a state court may not depart from the state election code enacted by the legislature. Bush v. Gore, 531 U. S. 98, 120 (2000) (Rehnquist, C. J., concurring)." The approach was embraced by Samuel Alito with whom Justices Thomas and Gorsuch joined in Republican Party v. Boockvar, Commonwealth of Pennsylvania Secretary of State
It is a stunning argument, that usurps the principle of deference to state authority in the conduct of elections. But the odds of its embrace by a Supreme Court majority with Anthony Kennedy and Ruth Ginsburg gone seems high to me.
- GWC
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