The election lawsuit Trump should win

In its effort to challenge vote counts in key states, the Trump campaignhas filed lots of lawsuits that have little chance of winning.

But there is one suit that it should win— not only for the Trump campaignor the 2020 election, but for all elections in the future. It’s the court fight over Pennsylvania’s election rules, and it involves a fundamental issue that is important to all 50states.

The first thing to remember is that the Constitution gives state legislatures the authority tomake rules governing the conduct of elections for federal offices in their state. In October 2019, the Pennsylvania state legislature passedAct 77, whichupdated andrevised the rules for elections in the state. For the first time ever, it allowedall Pennsylvanians to vote bymail if they chose, without requiring that they show they would be absent fromtheir voting district on Election Day.

Remember, this wasp re-corona virus, and Pennsylvania was moving toward greater voting by mail than in the past.

Onthe questionof voting by mail, the legislaturemade one clear, unambiguous requirement: Allmail-in ballots had to be receivedby 8 p.m. onElectionDay.

(It let stand an existing lawthat allowedmilitary and overseas ballots to be received for seven days after Election Day.)

Then, inMarchof this year, after the arrival of the virus, the legislature revisited the law. It made some changes to accommodate voting in a pandemic. It rescheduled the state’s primary election and includedmeasures tohelp reduce crowding at polling places. But it left untouchedthe requirement that allmail-inballots had to be received by 8 p.m. on election night.

That’swhere things stoodas the presidential election approached.

Thenanumber of Democratic groups filed a lawsuit against the secretary of state. The groups said the pandemic required that the deadline for receipt of absentee ballots be extended. The casewent to the Pennsylvania State Supreme Court, which has a 5-to-2 Democraticmajority. On Sept. 17, the court threw out the legislature’s deadline for ballots and created a newone: 5 p.m. onNov. 6, three days after Election Day.

The justices justmade it up. They did not claim that the existing lawwas unclear. “We are not asked to interpret the statutory language establishing the receivedby deadline formail-in ballots,” the majority justices wrote. “Indeed there is no ambiguity regarding the deadline set by the General Assembly .”

Nor did they claimthat the existing law was unconstitutional. “We arenot asked todeclare the language facially unconstitutional as there is nothing constitutionally infirmabout a deadline of 8 p.m. on Election Day for the receipt of ballots,” the justices added. Instead, the justices claimed that an “extraordinary situation” existed.

They repeated a lot of the fretting Democrats engaged in earlier this year about the post office. And then they declared coronavirus a “natural disaster,” threw out the law, and wrote a new one.

Republicans immediately protested. The Constitution gives the legislature thepower tomake election law, they argued, and in March the legislature, fully aware of the coronavirus situation, passed a law governing the 2020 election. The court can’t justmake upanewlaw. Thematterwent to the U.S. Supreme Court, which split 4 to 4 onwhether it shouldintervene. (New Justice Amy Coney Barrettwasnot upon the case.)

Thatmeant the court tookno action. Pennsylvania would keep accepting ballots for threedays after Election Day.

Justice Samuel Alito protested vigorously.

“The court’s handling of the important constitutional issue raised by this matter has needlessly created conditions that could lead to serious post-election problems,” hewrote. But Alito’swordswent unheeded, and the election went on with the state supreme court’s new ballot deadline. The results in Pennsylvania, of course, are very close — it tookdays to call the race for Joe Biden— and the court-createddeadline is part of a confusing and difficult situation. Along with Justices Thomas and Gorsuch, Alito concluded that the Pennsylvania case “has national importance, and there is a strong likelihood that the state supreme court decision violates the federal Constitution.”

So now, with the election over, the issue is headed back to the Supreme Court. And putting aside the specifics of the Pennsylvania situation, thematter concerns a hugely important principle, which is the constitutional authority of state legislatures tomake election law for their states. Other states withno stake in thePennsylvania results can see that. OnMonday, 10 states— Missouri, Alabama, Arkansas, Florida, Kentucky, Louisiana, Mississippi, South Carolina, SouthDakota andTexas— filed an amicus brief upholding the importance of the constitutional rights of state legislatures.

“The Pennsylvania supreme court’s decision overstepped its constitutional responsibility, encroachedon the authority of the Pennsylvania legislature, and violated the plain language of the [Constitution’s] Election Clauses,” the states, which are all governed by Republicans, wrote.

Whowillwin? Who knows, but

it appears Republicans have a strong case that the Pennsylvania court exceeded its authority.

“This is not some constitutional flight of fancy,” said John Yoo, the Berkeley professor and a former George W. Bush Justice Department official. “Justice Samuel Alito has already made clear his view that the Pennsylvania Supreme Court has violated the Constitution. ... If the federal Constitution directly grants those powers to the legislature of Pennsylvania, state courts have no authority to alter state election law for federal office, including the presidency.”

In the end, the case might have no effect on the presidential election results in Pennsylvania. But that’s not the issue at hand. The issue is who writes the election laws in the states — the legislature, or someone else?

The Constitution is clear on thematter, and the U.S. Supreme Court needs to decide.