"in separate opinions in the Wisconsin, Pennsylvania, and North Carolina cases, four Justices—Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas—
have endorsed arguments that could be used to change the rules for counting ballots after the election. The nub of the argument is that the Constitution commits to a state
legislature the power to fix rules for elections, and so when
other state actors change the rules, even for the best of reasons, they are actually violating the
federal Constitution (even if, as in Pennsylvania, the change is based upon how the state supreme court interprets state law—a matter on which it is supposed to have the last word).
On this theory, any otherwise lawful ballots received after the receipt deadline imposed by the state legislature is invalid, no matter what state authorities and state courts may conclude to the contrary... But in the Pennsylvania case, Alito explained exactly what could happen if that state (and the entire presidential election) ends up turning on whether the deadline imposed by the state legislature or the one imposed by the state supreme court should control.
- First, he wrote that “there is a strong likelihood that the [Pennsylvania] Supreme Court decision violates the Federal Constitution. The provisions of the Federal Constitution conferring on state legislatures, not state courts, the authority to make rules governing federal elections would be meaningless if a state court could override the rules adopted by the legislature simply by claiming that a state constitutional provision gave the courts the authority to make whatever rules it thought appropriate for the conduct of a fair election.” (Never mind that state constitutions – adopted by state legislatures – grant state supreme courts the ability to do exactly that.)
- Second, and more ominously, although the Court refused to intervene for now, Alito pointed out that it could always intervene later. As he wrote, “we have been informed by the Pennsylvania Attorney General that the Secretary of the Commonwealth issued guidance today directing county boards of elections to segregate ballots received between 8:00 p.m. on November 3, 2020, and 5:00 p.m. on November 6, 2020. Nothing in the Court’s order today precludes Petitioner from applying to this Court for relief if, for some reason, it is not satisfied with the Secretary’s guidance” (emphasis added). In other words, if the result in Pennsylvania ends up coming down to the ballots that arrive during that 45-hour window, Alito could be foreshadowing that the Court may throw those ballots out under Kavanaugh’s theory. And Justices Gorsuch and Thomas joined Alito’s opinion without any caveat.
What the president’s tweets seem to be banking on, however, is a specific scenario in which he’s ahead (or where it’s very, very close) in enough states to potentially affect the result of the election, and it’s only through late-counted ballots that the state (and, potentially, the election) ends up going for Vice President Joe Biden.
The critical point to take away from the above analysis is that, if it’s only late-counted ballots that tip the scales, Trump would have absolutely no leg to stand on. Federal law and the laws of every state allow the
counting of timely cast ballots after Election Day — and always have.
But if the entire election comes down to mail-in or absentee ballots mailed prior to November 3 but received after the deadline imposed by the relevant state’s legislature, there will certainly be litigation over whether those ballots should count, and at least four Justices have already made the arguments for why the answer may end up being “no.”
Election Law Primer: What to Expect During and After the 2020 Election