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Supreme Court Justice Neil Gorsuch, left, and Supreme Justice Brett Kavanaugh attend the State of the Union address on February 4, 2020, in Washington, DC. | Mario Tama/Getty Images

The Supreme Court ruling on Pennsylvania mail-in ballots is a blow to GOP — but the 4-4 vote should scare Democrats.

The Supreme Court handed down a brief, unsigned order on Monday, which effectively rejected radical arguments by the Republican Party of Pennsylvania that sought to make it harder to vote in that state. This order, in other words, is a victory for voting rights — but that victory may only last a matter of days.

Republican Party of Pennsylvania v. Boockvar involves a state Supreme Court order holding that many ballots received up to three days after Election Day must be counted. Monday’s order means that this state Supreme Court decision will stand, for now.

The Court’s decision not to grant relief to the GOP in Republican Party is not especially surprising. What is surprising is the vote breakdown in this case. The Court voted 4-4, with Chief Justice John Roberts crossing over to vote with the three liberal justices.

So in the almost certain event that Trump Supreme Court nominee Amy Coney Barrett is confirmed to join the Supreme Court, there could be five votes on the Supreme Court who support the GOP’s effort to toss out many ballots in the state of Pennsylvania. Indeed, it is possible that Republicans will attempt to raise the same issue before the justices after Barrett is confirmed.

The dissenting justices did not explain why they dissented

The Supreme Court’s order in Republican Party is only two sentences long. The first sentence states that the GOP’s request to stay the state Supreme Court decision is denied. The second merely states that “Justice Thomas, Justice Alito, Justice Gorsuch, and Justice Kavanaugh would grant the application.” None of the four justices in dissent explained why they dissented.

In its brief asking the Supreme Court to block the state court’s decision, however, the GOP advanced two legally dubious theories.

The first is that a federal law providing that the election shall take place “on the Tuesday next after the first Monday in November.” Republicans argue that federal law requires “the 2020 general election to be consummated on Election Day (November 3, 2020).” So any ballots that may have been mailed after this date must be tossed.

One serious problem with this argument, however, is that the provisions of federal law setting an election date should not be enforceable in federal court. As I’ve previously explained, private parties are only allowed to bring a lawsuit seeking to enforce a federal statute if that statute contains particular language. And the federal law setting the date of the election does not contain such language.

The GOP’s other argument is potentially breathtaking in its implications. The Constitution provides that “each State shall appoint, in such Manner as the Legislature thereof may direct,” members of the Electoral College. In their brief, the GOP hones in on the word “Legislature,” arguing that only the Pennsylvania state legislature may set the state’s rules for choosing presidential electors — not the state Supreme Court.

But there’s a glaring problem with this argument. As the Supreme Court held in Marbury v. Madison (1803), “it is emphatically the province and duty of the Judicial Department to say what the law is.” In Republican Party, two parties had a disagreement about what Pennsylvania law says about how ballots should be counted. Ultimately, the state supreme court resolved that disagreement in a manner that the GOP disagrees with.

The GOP argues in its brief that the state Supreme Court’s decision relied on reasoning that is “tortured at best.” But so what? There was a disagreement between two parties. Someone had to resolve that dispute. And, in questions of state law, the state Supreme Court is supposed to be the final word on such disputes.

One of the most basic principles of American law is that the Supreme Court of the United States has the final word on questions of federal law, but state supreme courts have the final word on how to interpret the law of their own state.

Indeed, if state supreme courts cannot interpret their state’s own election law, it’s unclear how that law is supposed to function. There will inevitably be legal disagreements between candidates, parties, and election officials during an election. Perhaps the Democratic Party believes that a particular ballot should be counted, and the Republican Party disagrees.

But someone has to have the power to resolve such disagreements, and, in this country, disputes about the proper meaning of an existing law are resolved by the judiciary. If the judiciary cannot perform this function, we have no way of knowing what the law is — and we may have no way of knowing who won a disputed election.

In any event, because the four dissenting justices did not explain their reasoning, we do not know whether they voted with the GOP because they were moved by one or both of the GOP’s arguments — or maybe because they came up with their own reason to back their own political party in this case.

What we do know is that four plus one equals five. Thus, in the likely event that Judge Barrett becomes Justice Barrett, there will probably be a majority on the Supreme Court to hand a victory to the GOP in cases like this one.

Indeed, the GOP may be able to raise this issue again after Barrett is confirmed, potentially securing a Court order requiring states like Pennsylvania to toss out an unknown number of ballots that arrive after Election Day. If the election is close, that could be enough to change the result.


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Author: Ian Millhiser

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