Those of you of a certain age may remember that in 2000, the US presidential election came down to "Florida, Florida, Florida" (Tim Russert). It appears that this time, the race could hinge on "Pennsylvania, Pennsylvania, Pennsylvania". We're in nail-biting territory here, folks....and things may have gotten even more complicated, as the lawyers are about to have their say.
Last week, the Pennsylvania Supreme Court made a major decision regarding absentee ballots, ordering an extension to the voting deadline. Republicans are challenging the constitutionality of this ruling. They argue that only state legislatures have the power to grant ballot extensions, and this was not specifically done by Pennsylvania's state leadership (1).
Now, let's review what federal and state law say on this matter. The US Constitution (in article II, section 1, clauses 1-2) says thus:
"The executive power shall be vested in a President of the United States of America. He shall hold his office during the term of four years, and, together with the Vice President, chosen for the same term, be elected, as follows:
Each state shall appoint, in such manner as the legislature thereof may direct, a number of electors, equal to the whole number of senators and representatives to which the state may be entitled in the Congress: but no senator or representative, or person holding an office of trust or profit under the United States, shall be appointed an elector" (2).
Notice the part that I have outlined in bold font. It specifies that state legislatures are in charge of regulating and supervising presidential elections in their respective state.
We now come to a question involving the Constitution of the State of Pennsylvania. Specifically, the matter at hand deals with the operation of elections in that state. To wit:
"Qualifications of Electors.
Every citizen 21 years of age, possessing the following qualifications, shall be entitled to vote at all elections subject, however, to such laws requiring and regulating the registration of electors as the General Assembly may enact" (Article VII, Section 1, Clause 1)
Regarding the specifics of absentee voting, the State Constitution says thus:
"The Legislature shall, by general law, provide a manner in which, and the time and place at which, qualified electors who may, on the occurrence of any election, be absent from the municipality of their residence, because their duties, occupation or business require them to be elsewhere or who, on the occurrence of any election, are unable to attend at their proper polling places because of illness or physical disability or who will not attend a polling place because of the observance of a religious holiday or who cannot vote because of election day duties, in the case of a county employee, may vote, and for the return and canvass of their votes in the election district in which they respectively reside" (Article VII, Section 14, Sub-Section A)
The state goes further in its description of "election and registration laws".
"All laws regulating the holding of elections by the citizens, or for the registration of electors, shall be uniform throughout the State, except that...the General Assembly shall by general law, permit the use of voting machines, or other mechanical devices for registering or recording and computing the vote..." (Article VII, Section 6)
It is readily apparent that the US Constitution places the job of election operations with individual state legislatures, not the state courts. The Pennsylvania Constitution at least implies the same. Since the General Assembly of that state never authorized an absentee ballot extension, it is my opinion that such an extension (although not specifically unconstitutional) should be struck down.
In the event that the respective courts find for the Republican Party, Pennsylvania's twenty electoral votes would likely go to Donald Trump. It is quite possible that this result would deliver victory, and another four years, to the incumbent president.
Whatever happens in Pennsylvania, this is going to be a BIG deal. Nevertheless, we may not know the "final score" in the state until Friday. Hopefully, the courts will make the right call here. This election, and indeed our freedoms, hang in the balance.
Author's Note: Even if the state and federal constitutions differed on this matter, the US Constitution's interpretation would take precedence (see the "Supremacy Clause") (3).
Sources:
1. "Lawsuits Expected Over Mail-In Ballots In Pennsylvania, Other Crucial Rust Belt Swing States | CBC News". CBC, 2020, https://www.cbc.ca/news/world/pennsylvania-legal-challenge-absentee-ballots-1.5788966. Accessed 4 Nov 2020.
2. U.S. Const. art. II, sec. 1, cl. 2.
3. Personal knowledge.
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