The Volokh Conspiracy

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Supreme Court Denies Request for Stay in Pennsylvania Election Dispute

The court split 4-4 in what could have been a major election decision.


The Supreme Court is not going to enter the Pennsylvania election law dispute. In Republican Party of Pennsylvania v. Boockvar the Court denied two stay applications filed by Pennsylvania Republicans pending an appeal of a Pennsylvania Supreme Court decision requiring the counting of mail-in ballots received within three day of Election Day, unless they were postmarked after Election Day. (In other words, ballots received by that deadline without a postmark would be counted.)

The vote in Boockvar was 4-4. Justices Thomas, Alito, Gorsuch and Kavanaugh would have granted the stay. The Chief Justice and Justices Breyer, Sotomayor and Kagan would not have. There were no opinions. (More on the substantive issues in the case can be found here.)

Despite the lack of opinions, the result makes some sense, as the justices split along predictable ideological lines. The conservative justices opposed allowing courts rewrite election laws. The liberal justices were happy to leave in place a state court decision making it easier to vote. And the Chief? He joined the liberals in this case because he does not like judicial intervention or the unnecessary granting of stays (an aspect of his jurisprudence I discussed here).

This outcome does not mean the Chief Justice will turn away appeals of equivalent decisions from lower federal courts. A state court decision, such as was at issue here, could be handled at the state level. An equivalent decision from a lower federal court, however, would represent intrusion by federal courts of the sort the Chief Justice does not like, and would also implicate the Purcell principle, which counsels against federal court intervention so close to election day. So I suspect the fact that this case presented a stay pending appeal from a state supreme court is why the Court split 4-4, instead of 5-3.

This 4-4 split is likely to increase the calls for Amy Coney Barrett to recuse from election disputes this year, should she be confirmed prior to election day. In a Washington Post op-ed, former judge Michael Luttig argued her recusal could be required by Caperton v. Massey. Ed Whelan responded to the Luttig op-ed on NRO's Bench Memos.


NEXT: One week away from Justice Barrett's (likely) confirmation, the Court 4-4's an appeal from the Pennsylvania Supreme Court

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  1. Brah! Who cares about the election. Jeffrey Toobin was jerkin off during a Zoom call!

    1. Apparently he thought they were doing an “erection stimulation” and not an “election simulation”...classic mixup.

    2. He thought his camera was off. That kind of thing could happen to anybody.

      1. Only if "anybody" is restricted to "people who masturbate while doing Zoom calls".

    3. And based on the description of the call, Toobin jerking off was the least masturbatory thing going on.

  2. Here's the big problem though.

    Election day is set by US federal law. This decision by the state courts allow ballots to be cast and collected after election day.

    This practically guarantees a federal lawsuit on November 4th at 8 AM to stop counting any new ballots that come in, by whoever is currently winning in Pennsylvania.

    1. No, ballots must be mailed by Election Day, and must be accompanied by a signed declaration dated on or before Election Day. The decision allows the counting of votes received up to 3 days afterwards when there's no postmark, or no legible postmark. Seeing as the voter has no control over whether a mailing gets postmarked, I really doubt Pennsylvania voters are gonna be all "watch, I'm gonna CAST MY BALLOT ON NOVEMBER 4! SCORE!"

      1. Absentee ballots are mailed weeks before election day. Failing to mail in time to have the ballots arrive on or before election day, in no way limits a persons ability to vote. Judges sure like to abuse the constitution.

        1. Because prompt delivery of mail to the recipient is always 100% guaranteed! No one is ever, I dunno, hospitalized and unable to access his or her mail! Particularly not during a pandemic!


          1. Three weeks, 21 days, is plenty of time for any individual to assure their ballott arrives with time to spare.
            Regardless, the People, via their representatives considered needed response time. The judiciary has nothing in the constitution, or statute, to overrule the will of the people.

          2. I suppose you mail bill payments on the day they're due, too?

            1. Nope! But I might well do so if I'd just gotten out of the hospital and didn't pick up my mail until the previous day.

              1. Yes, and that sort of thing happens to people every election. 4 years ago I missed voting because a favorite cousin died late Friday night, and it was too late to get an absentee ballot before I left for the out of state funeral. Was that enough to constitutionally invalidate SC election laws?

                The question is, what fraction of the population is subject to missing voting due to this factor?

                As I look at the numbers, we're seeing about 367K positive tests and 800 deaths per week in a country of ~330M people, so a tad over 1% merely positive, with most of those people being largely asymptomatic, and expected to get over the infection in a week or two. So, we might speculate that perhaps a 10th of a percent of the population are actually in a position where they might not be able to vote due to Covid, at any given time.

                In a country where about half the people registered to vote don't bother.

                In terms of the influence on how many people "can" vote, it's a rounding error. It's not like a natural disaster like a hurricane or an earthquake happening the day before the election.

                1. It’s not like a natural disaster like a hurricane or an earthquake happening the day before the election.

                  But by your argument even such a disaster wouldn't permit extending the deadline for receipt of ballots.

                  Besides, your Covid numbers notwithstanding, there are other reasons ballots might be unreasonably delayed, not the least of which is deliberate attempts by the Administration to slow the delivery of mail.

      2. Looks like a close race in Pennsylvania on November 3rd.... It's gonna come down to a few thousand votes

        Oooh, look, suddenly it's November 4th, and the the post office in Philadelphia "found" a few thousand ballots, just sitting in the post office. No postmark. How did they get there? Who knows? Send them on! Look, they shifted the election!

        1. This is ludicrous. Are you saying post office employees are going to forge a "few thousand ballots," fail to postmark them, hide them in the post office, and then produce them under the most suspicious circumstances possible?

          That you have to resort to this sort of conspiracy theorizing is further evidence that the PA Supreme Court did nothing remotely wrong here.

          1. Nope. (Oh, and they don't have to be postmarked.) Here's a more likely scenario.

            Take a slightly sketchy political operative who obtains a few thousand ballots. They then pick a post office, pick the lock (or steal a key from a post office employee) on November 5th, drop them all in the general mail collection area, and walk away.

            No fuss, no muss.

            1. Your ideas about how easy it is to break into post offices are hilarious, but whatever. "Obtains" a few thousand ballots? From where? You think there are thousands of registered voters who are gonna say "hey, political operative, I'm not gonna vote legally this year, so here's a ballot, do whatever you want with it"?

              1. It's not like there are 300 or so burglaries of US post offices every year.
                Oh wait. There are.

                1. I think what you all are missing is: if you have a foolproof plan for getting fraudulent ballots to be counted, why would you wait until November 4th to mail them hoping they'll get there by the 6th? It's idiocy, yours and your fantasized election stealers'.

                  1. Because on November 4th you know how many you need. It's always embarrassing when your turnout exceeds 100%.

                    1. Why would it exceed 100% if you're gathering ballots from this heretofore undiscovered group of registered voters who don't bother to vote on time but are happy to commit fraud to vote late? I mean, this bunch you've unearthed is on the voter rolls too. Or are these incredible political operatives forging registrations as well?

                    2. So, how would this work?

                      Perhaps like the case of Harry Sandoe Maxwell who would pick up "girls" and get them to sign absentee ballots in the names of deceased indivduals" (Delaware county, PA, 2019)

                    3. "Why would it exceed 100% if you’re gathering ballots from this heretofore undiscovered group of registered voters who don’t bother to vote on time but are happy to commit fraud to vote late?"

                      That's not my scenario, that's somebody else's. I assume that who has voted in each election is public information, and with an inside man, you could obtain absentee ballots in the names of these people, fill them out, and hand them back to your guy.

                      But if you do that too aggressively, some of those people decide that they're going to vote after all in a high turnout year, and you get embarrassed by an insanely high turnout. But you can usually blow it off as people having "forgotten" that they'd voted absentee. After all, how do they prove a negative.

                    4. Perhaps like the case of Harry Sandoe Maxwell who would pick up “girls” and get them to sign absentee ballots in the names of deceased indivduals” (Delaware county, PA, 2019)

                      Correction - he had them sign absentee ballot applications. And he got caught doing it. So.

                2. 300 burglaries per year is rather low, considering how many post offices there are (31,322). If I trust your statistic, less than 1 post office is burgled per day, and less than 1% of post offices are burgled per year. That seems safe on its own. Considering that many of these burglaries must be caught, that makes me feel even better.

                  Considering that anyone doing such tampering would have to have insider knowledge of where the ballots would be in the mail process at that time, and such knowledge would be exceedingly difficult to gather without (a) others catching on or (b) extensive co-conspirators, I feel great.

                  1. If you feel safe with 1% of post offices being burglarized, why do you feel unsafe about that same 1% covid death rate? Did your favorite mouthpieces not tell you to be scared?

            2. And how do you suppose they'll manage this feat, hm? They'll get some generic ballot form and photocopy it thousands of times?

              I mean, are you not paying attention to the process? There are so many hoops to jump through, to get a mailed-in ballot to count, that the idea that someone will just... dump thousands of ballots they've outright forged... is preposterous.

              Not to mention that none of your nonsense about postmarking or receipt date has anything to do with it. Your nightmare scenario can occur on November 2 just as easily as it can occur on November 4.

              1. Nah, they'll just pick up some of the hundreds of thousands that went to wrong addresses, like in Nevada. Just dumped in the street and trash cans.

                Why photocopy ballots, when the State already did it for you.


                1. Pennsylvania hasn't sent out ballots to all registered voters, darling, but nice try.

                2. Yes, why photocopy the ballots, when you need only pick up thousands of ballots sent to voters who have moved, and submit them with signatures that somehow match those voters' signatures?

                  This is why no one take allegations of voter fraud seriously. People like you throw around these fantastical scenarios, with total ignorance of the significant checks already in place to prevent them happening, in order to support voting restrictions that would do nothing to prevent them in the first place.

                  1. I guess you missed the news that Pennsylvania ordered election judges to more or less ignore signature mismatches unless they are terribly inconsistent.

                    1. That would make it easier to forge, but do I have something to copy when forging it?

                    2. Lovely, but unless I can manage to forge barcodes, I'm still out of luck.

                    3. Read your own link, you fucking moron.

                      Signature matches in PA result in the opportunity to cure, rather than simply trashing the ballot. They're not "more or less" ignoring signature mismatches.

              2. I figure most election fraud is actually carried out by the people on the inside, or at least with their help, not people on the outside.

                I see no reason to suppose that elections administrators are categorically more honest than any other subset of humanity. Some fraction of them will be dishonest, and in some precincts, a critical mass will be of the same party and dishonest, and they'll be tempted.

                You cut out a lot of the ways fraud can be caught, once you have the people running the election committing it. Just like the bank guard and lock on the vault don't defend against embezzlement.

          2. Al Franken could not be reached for comment.

        2. The conspiring liberals in your mind sound dangerous. Probably best to put the election off until we can lock them all up. Amirite?

          1. Yeah, it's all Russian propaganda. I mean, except the stuff that makes the right look bad.

        3. Looks like a close race in Pennsylvania on November 3rd…. It’s gonna come down to a few thousand votes.

          Oooh, look, suddenly it’s November 4th, and the the post office in Philadelphia “found” a few thousand ballots, just sitting in the post office. They're all postmarked and everything, just didn't get delivered because DeJoy ordered no overtime, and there aren't enough sorting machines in the Philadelphia post office, and a bunch of the carriers were reassigned elsewhere. Too bad, but we can't count them. It's the law you know.

          You want to make up stories? OK. Mine has a better basis than yours.

    2. Election day is set by US federal law.

      And it would appear that Pennsylvania is holding its election on... *checks* November 3. Seems we're good.

      Oh, did you mean, "I am going to continue pounding on a trivially true statement and insisting that its implications support whatever conclusion I happen to prefer at this moment, without any kind of explanation or justification?"

      Trumpers gotta Trump.

      1. Is it really November 3rd though? Since they keep counting ballots that keep trickling in until....November 6th....

        1. But they have to be accompanied by a signed and dated declaration, so no, they can't cast ballots later.

          1. Because people would NEVER backdate something...

            1. *yawn* Do you have a point, other than to insist on strict legal formalism because you think it'll successfully disenfranchise a few dozen people?

              1. If we have a close race in PA...a difference of a few thousand votes, it probably would not be too hard for one of the parties to find very upset people who did not mail in their ballots and send someone to collect the ballots.
                Back in 2002 I was head of GOTV in a small IN county. I knew the address and phone number of every registered voter in the county. I had people at the polls to check on who voted. I had hourly lists of people who had not yet voted. And this was in 2002 before smart phones and apps.
                You have a state with a population of several million people. Many of them will not vote. At 11:00 pm on Nov 3 someone shows up at your door and asks for your ballot so they can drop it off for you. You complete the ballot (or maybe they complete it for you) and you hand it to them to drop off. The ballot harvester does not make it to the county drop box or the Post Office until early on Nov 4. No problem. Drop it in the box. Or better yet, add it to the piles of ballots. The PA Supreme Court created a presumption that all such ballots received by Nov 5 are matter when they were actually stuffed in the box.

                1. Speculative scenarios won't get you very far without evidence.

                  Plus, your scenario requires a bunch of people coordinating. That makes for a pretty leaky conspiracy.

                  1. So? If you overturn a POTUS election, what's a couple years probation or a $500 fine?

                    1. You think that would be the only consequences if these faceless hypothetical Dems overturned the election?

                      This is just catastrophizing fan fiction like those speculating Trump won't leave office if he loses.

                2. Yes, it would be a real tragedy if lots of registered voters decided to vote because they thought their votes could make a real difference.

                  1. Decided to vote (After election day)....

                    1. Again, you haven't exactly explained why casting a ballot after election day is an evil we need to get worked up about.

                      I get it. We have election day, and related deadlines, for a reason - to ensure finality of the vote and get things tabulated in time for the various deliveries and inaugurations that are constitutionally mandated up the line.

                      But we don't have an "election day" because there is something wrong with voting late and inadvertently having your vote get counted. At least, nothing you've bothered to explain.

                    2. But we don’t have an “election day” because there is something wrong with voting late and inadvertently having your vote get counted. At least, nothing you’ve bothered to explain.

                      The reason for the rules is to achieve the finality you mention AND to provide security against fraud. Being able to vote after election day helps fraud.

                      1. Fraudsters know who has and has not voted by the end of election day. Therefore they know whose votes they can safely steal.

                      2. They also know how many votes are needed. If their guy is 25,000 votes short, they can manufacture 35,000 or so and that's enough. If their guy is 50,000 ahead they don't need to take the risk of getting caught. If their guy is 150,000 votes behind they (presumably) will conclude that that's too many to steal, and avoid getting caught by giving up.

                      3. So you can steal, say, 50,000 up front and decide whether to drop them in once you've seen how the land lies. If you have to make up your mind before election day, you have to take the risk of getting caught, even when you didn't need to, because you were going to wiin, or lose comfortably, anyway. And if you're gonna cheat you have to go big, because what's the point of going small, risking getting caught, and still losing.

                      4. Also, and obviously, if the election officials have set up their ballot security and chain of custody system to cope with ballota arriving by 11pm on Election Day, and then you throw em a curve ball at the last minute, telling them they've now got to deal with ballots arriving after Election Day, then you increase their chances of screwing up.

                3. Wouldn't the drop box be locked at midnight on the 3rd?

                  So you'd have to take it to the post office, where they would postmark it.

                  And just how many votes could you gather by going door-to-door at 11:00, waking people up?

                  What ridiculous scenarios these are.

              2. One person's "strict formalism", ('Tuesday doesn't mean Friday.') is another person's "rule of law".

                1. Ah, it's fun to be lectured by Trump supporters about strictly following the letter of the law!

                2. I'm not going to take lectures on the "rule of law" from someone who doesn't believe that the courts count as part of it.

              3. Nobody would be disenfranchised, they would have failed to vote. Try honesty.

                1. Aye, and a person who fails to muster up the funds to pay a poll tax, or to have developed their ability to read (who doesn't know how to read, after all!), if they are therefore barred from voting, has simply "failed to vote." They're not at all "disenfranchised," right?

        2. It seems to me that you have to do one of two things.

          One - define "election day" in a way that excludes the receipt and counting of ballots that are presumed sent on or before November 3, without by the same stroke invalidating all early voting, absentee voting, and tallying results after November 3.

          Two - admit that you're happy casting all of those other modern innovations on states regulating their own elections as inconsistent with federal law, thereby revealing yourself to be the crank you are.

          1. The problem here is that this isn't an example of a state regulating its own elections. It's not even an example of a state regulating federal elections.

            It's an example of a state court ordering state election laws violated.

            Now, I'll grant that, for state and local elections, the state supreme court would definitely get away with that. "The law says Tuesday, but we say that means Friday" is absolutely the sort of thing a state supreme court can get away with where state elections are concerned.

            It's not something they'd normally be permitted to do for federal elections, though.

            1. No, actually, states do it all the time for federal elections, because there's nothing resembling a comprehensive federal election law. Arguably there should be, but there isn't. That's why you have campaigns going to court on election night to force local jurisdictions to hold polling places open a few hours more so that everyone in line by the closing time can vote.

            2. It’s an example of a state court ordering state election laws violated.

              You seem to be laboring under the misimpression that state courts do not, themselves, constitute part of a state's government, or are responsible for determining state law.

              Setting aside your slopping distinctions, what you mean here is more like: state courts are substituting their judgment for those of legislators, many of whom oppose making any accommodation for expanding ballot access during a pandemic because *checks* doing so would undermine their own political prospects.

              Can we be clear about that, at least?

              1. No, I'm laboring under the understanding that the state courts are not "the legislature".

                States have the power to create rules for state elections. So the state courts, as part of the state government, can play a part.

                State legislatures have the power to create rules for federal elections, as a matter of federal constitutional law. NOT state constitutional law. For this purpose they're acting under a power granted by the federal Constitution, not their state constitution.

                So it is perfectly appropriate for a federal court to inquire as to whether a state court is actually correct in its interpretation of the rules the state legislature originated, when it comes to federal elections, and ONLY federal elections.

                1. State legislatures also have the power to amend state constitutions. State legislatures are the body that sets up state constitutions. If state legislatures don't think that state supreme courts should be adjudicating election issues, they can amend those same state constitutions by following the process to amend those state constitutions that they set up in the first place.

                  1. Normally legislators assume the courts will be upholding the laws they write, not ordering that they be violated. And when they find out a few weeks before an election that they assumed wrong, it's a bit late to amend the state constitution.

                    1. How quickly certain libertarian types forget that one purpose of a constitution is to constrain the legislature.

                    2. One purpose, sure. Does that mean the courts should instead become unelected super-legislatures? Seems like a peculiar way to restrain a legislature: Just hand more power to somebody you can't vote out of office...

                    3. Being a super legislature is not what's happening here, though. They cite to the state constitution.

                      Damn you for forcing me to skim the opinion!

                    4. Oh, they "cited the state constitution". Well, I guess that settles it, people who usurp power never make excuses as to why what they're doing is legitimate! Once you've cited the state constitution it's all over.

                      I mean, obviously, if they were usurping power they'd simply have ruled, "Because we can, so there!"

                    5. They cite to the state constitution.

                      So what ? It is the federal constitution that specifies that the manner of elections is to be prescribed by the state legislature. If the state constitution contradicts this, it is, to that extent, unconstitutional under the federal constitution. And the federal constitution beats the state constitution.

                      And federal claims are properly raised in federal court.

                      The only way the state constitution or the state judiciary would have a role in amending the state legislature's prescription as to the manner of elections to the federal Congress, is if the state legislature has, in its prescription as to that manner, prescribed such a role for the state judiciary.

                2. The federal courts, by and large, entirely disagree with you, imbecile.

  3. Would this be challenged federally by a lower court? Looks to be an ugly court battle honestly, how would one know if a ballot was counted before/during election day or during the 3 days after?

    1. You could know if they were carefully segregated. You could also mix them together, and make it impossible to find out.

      Want to take any bets on which will happen?

  4. Whether or not the state court properly interpreted state law isn't an issue to be decided by a federal court. It is very distressing that four justices were willing to step in and overrule the final determination of what the elected branches wanted (and no Armchair, no ballots are permitted to be cast after election day).

    1. Unfortunately since Bush v. Gore that is no longer true.

      1. Bush v Gore shut down a recount ORDERED, by the Florida Supreme court. Really strange order by an appellate court, that had NO case before them. Double strange, because the constitution laid out a very clear path as to how electors would be picked if the vote could not be certified. So the court involving themselves was intentional interference of congressional constitutional enumerated powers.

      2. It wasn't true BEFORE Bush v Gore. (Which cited prior precedent on the topic.) It just wasn't generally an issue.

        They used to say that the Court follows the election returns. In this case it may have led them; Trump's best shot of winning this election, as poor as it was, was for the Supreme court to order it to be run entirely by the books, according the the law.

        An anything goes election works in Biden's favor.

        1. Hold this thought for when Trump is trying to get the legislatures of PA, MI, and WI to ignore the vote totals and choose a minority slate of electors, and Brett says "sounds good to me." Nope, no "anything goes" election for Brett.

    2. When the state court is a 7 person court with 5 liberal Democrats willing to invent law, a conservative court should overrule them.

      That same "court" also held that Republicans couldn't gerrymander seats, but that it should be redone so that it's gerrymandered for Democrats.

      They also overturned a law allowing people to file lawsuits against towns and cities for unconstitutional gun laws based on a BS public comment period, that if it was about gay "marriage" or baby killing, they would have been fine for.

      That court is an embarrassment.

      1. The law is something imposed by the elites on the people.

    3. Well, how would you know if they are cast after election day or not? They're just there, in the post office, without a postmark.

      1. The signed, dated declaration tends to clear that up.

        1. It's like you've never heard of backdating...

          1. No. You asked how we know when they were cast and suggested that there's no way to know. I pointed out that you were wrong.

            The idea that there are lots of voters out there who are going to cast votes after election day and somehow have figured out a foolproof way to coordinate their scheme and get their votes counted is just silly. You're reaching.

            1. Backdating is so easy to do, and so hard to prove it was done, that the dated declaration is worthless.

              1. Sorry, but you're ignoring the issue, which is that there's no hidden mob of voters who are all waiting until November 4 to deposit fraudulently backdated declarations and ballots in the mail and hope that the post office doesn't postmark them--or, I guess, hand them off to some "political operative" who'll break into a post office and dump them there. Anyone who cares enough about the outcome of the election to do this sort of thing would just vote on November 3. All of your theories are absurd.

                1. Your are missing the part where the Pennsylvania Supreme Court also ruled that any ballot received after November 3rd is counted three times. I missed that part too, but it must be there because otherwise Armchair's, etc., theories of how people now ecstatic that they can backdate their ballots and mail them November 4th are complete idiocy.

                2. The Democrat Party can just find registered voters who didn't vote, print one up for them, have someone forge their ballot and "declaration," and drop them off in a post office box. Simple.

                  1. You...don't know how mail in ballots work, do you?

                    A party can't just "print one up for them" (I mean, they could in the 19th century; it happened in South Carolina in 1876, but we're talking about 2020). People are sent ballots with barcoded envelopes that uniquely identify the voter. They're not sent these by the parties; they're sent them via local boards of election, and they're printed by professional printing companies. You're suggesting that a) the election in Pennsylvania is likely to be close enough for a relatively minimal number of ballots to make a difference (a few tens of thousands of ballots dropped into the system somewhere are going to arouse comment and suspicion), b) that someone with access to state voter databases is going to be able to determine who didn't vote in time to set this whole thing up, c) that a company is going to print all of those ballots, and d) that they'll manage to get them into the mail under these circumstances. Oh, and that none of the ballots are accidentally those for people who have already voted, say on election day, when the state likely won't update that information on public facing servers for several days.

                  2. So if you know this, and it's so easy, you are telling me that you won't do it and don't expect Republicans to do it? Why? They're so honest when it comes to elections?

                    Does the 9th Congressional District in North Carolina ring a bell? Disgraced congressman Watkins (R-Kan)?

                    Only fools think all knaves are in the other party. When it comes to voter fraud, the Republicans are currently leading the pack. I presume to protect the narrative, you will just assume it's only Republicans getting caught. If so, then accept the necessary corollary that goes with that assumption.

            2. He's not reaching.

              He's just trolling. It's utter nonsense and he knows it.

    4. Josh R : Whether or not the state court properly interpreted state law isn’t an issue to be decided by a federal court.

      It is explicitly provided in the federal Constitution that :

      The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof

      There is no provision suggesting that the state judiciary may amend the manner prescribed by the legislature, nor even that the state constitution may provide that the state judiciary may amend the manner prescribed by the legislature. The exclusive power of the state legislature to prescribe the manner of elections (absent Congressional intervention) is not creature of state law, it is a creature of the federal Constitution.

      Consequently If the state judiciary has intervened so as to arrange that the election has been, or is to be, held contrary to the manner prescribed by the state legislature, then the federal courts have a duty to void that unconstitutional interference.

  5. A striking outcome. After following Justice Roberts' votes in cases which bear directly on political outcomes, this is the first case on record that I know of where he cast a vote which arguably favors Democrats. I am deprived of a well-worn talking point about partisanship on the Supreme Court. I hope soon to be deprived of others.

    1. You're not familiar with his ACA rewrite?

      1. Sam, I have said this before, but you may have missed it. I am not talking about the set of all cases with notable partisan valance. I am talking about the subset of cases which directly affect the political process, or decide political outcomes. ACA belongs in the first set, but not in the second. But this Pennsylvania case clearly is in the political outcomes subset. Roberts decided it in a way that delighted Democrats and dismayed Republicans, which broke a very long all-pro-Republican pattern for Roberts. So that makes it remarkable.

    2. You also forgot about Department of Commerce v. New York.

      But given your § 230 nonsense, I don't think that facts have ever deprived you of your well-worn talking points.

      1. DN, I'll grant you that one, but I "forgot" it on purpose. It seemed like a close call about whether that was a decision on the merits of the case, or a decision on the stinky backstory, regardless of the merits. So I made a close decision and excluded it from the category of cases which directly affect political outcomes. On a different day I might have gone the other way.

  6. Another example of the conservatives (so-called) on the Court upholding the basic conservative principle that states should be allowed to set their own rules and govern accordingly as long as they are not in violation of federal or constitutional law. Oh, wait a minute . . . . .

    1. Not in a federal election, they shouldn't be allowed to. Unless you'll let us put in civic tests and taxpaying requirements in our states?

      1. There are no federal elections. Only, state and local elections.

      2. There is no federal election. Each state votes to determine who it sends to the electoral college, and each state also votes for its representatives in Congress. The president presides over the union, but the elections (including most of the rules surrounding said election and who appears on the ballot) are set state by state.

  7. Could they renew the stay request once ACB is confirmed?

  8. Ballots in by Election Day is a no brainer unless you like chaos. Extend the voting period backward if you have to and make exceptions for postmarked dates that should be guaranteed to be in on time. BTW Maybe Dems can drop all the nonsense over ABC since we've clearly already made a huge concession for them by elevating Roberts to the bench.

    1. Ah yes, the no brainer power of the judiciary.

      1. What you think ballots coming in out of nowhere a year later in 2021 swinging the Presidency to the other candidate is a good idea?

        1. 'Good idea/bad idea' is not what courts rule on.

          1. If that were true then there would be no such thing as the liberal wing of the Court, there would be no Roe or gay marriage or forced bussing or half the things that have come of it and RGB if she even made it on to the Court would essentially be a bureaucrat nobody cared about.

            1. Screw the constitution - it's all power for the sake of saving the republic from itself.

              A common argument from you.

              Not a very convincing one to anyone who understands that principles are important.

              1. Hey if you want to require all Justices to be originalists/textualists you'll get no argument out of me. Knock yourself out.

                1. There are other principles than those the Federalist society espouses.

                  1. Either you want to be a Consitutionalist or you don't Gastlightro. If you're going to be a 'Living Constitutionalist' or whatever cockamamie theory besides a plain original reading to get whatever you want why bother to attack my post in the first place? Bored or something?

                    1. AmosArch, I will take a moment to attack your post. Neither you, nor Amy Coney Barrett, nor almost any so-called originalists, have ability to read a founding era text in context, and say accurately what it means.

                      You do not know what the text means, in part because you do not know what the context means. You know none of that, because the only tool you can bring to the task of historical insight is a set of present-minded assumptions—and modern systems of thought—which the historical figures in question neither shared nor practiced. They no more thought like you do, than you can think the way people will think in the year 2251.

                      Of course, you suppose the opposite, because of your ignorance. Confidence orginalists may cherish about their own insight is based tacitly on an erroneous assumption that today's systems of thought are practically alike with those of the founding era—perhaps differing in minor particulars.

                      That is not so. But the only way anyone could learn otherwise would be to do what professional historians do, and pickle themselves for years in the founding era, by studying original sources. You have not done that.

                      Submit yourself to that discipline, and at some point it would dawn on you, "Oh yeah, the past is strange. None of these folks thought the way I expected them to think. Among them, even when circumstances look to require it, none of today's issues ever seem to come up. They always veer off on tangents, and end up talking about stuff I never expected." To someone who studies diligently a bygone era, there always comes a moment of amazement, to discover how little of the present is prefigured in the past.

                      That, none of you would-be originalists ever learn, for two reasons. First, because you are too lazy, and too contemptuous of expertise not your own to take account of it. Second, because if you did do it, it would turn into unwanted reality the boast originalists insist upon, again and again—that they have built a method to deliver objective constraint to judicial reasoning.

                      That constraint being the last thing originalists want, they have no intention of wasting years of study to actually acquire it. Originalists have precedents to overturn, and they are in a hurry to do it.

                      For extra measure, would-be originalists make it a point never to consult—and often to denigrate—the historians who have studied to learn the insights which could, at infrequent intervals, constrain judicial reasoning. Constraining insights which originalists do not themselves control? They want no part of them.

                      As practiced now, originalism is a bad business, and an intellectually slippery one. You should not want to associate yourself with it.

          2. "Good idea/bad idea" is exactly what the PA court was ruling on. The text of the law was pretty clear, but they overturned it because they thought following it was a bad idea.

            1. That's not anywhere near the procedural posture of the case.

            2. And in their minds, doing something to advance "freedom" or "fairness" justifies the means. That's how liberal judges justify ignoring the explicit protections of the 2nd Amendment, or how on creating a right to sodomize other dudes.

          3. It is for the Living Constitutionalists.

        2. Three days, a year, who can tell the difference, really?

      2. Sarcastr0, I have to tell you, the law in PA is rather peculiar. Ballots with no postmark at all will be accepted in PA from Wednesday, November 4 through Friday, November 6. That is really something. Not that this would ever happen of course, but I wonder if Team D votes will suddenly appear in 'red' congressional districts where vote tallies are known.

        Personally, I think the right decision was reached. Meaning, the state of PA gets to decide how the votes get counted. To me, it is a federalism issue.

        1. Did the "state of PA" decide? Or did 5 Democrat Party judges on their Supreme Court decide? Also of note, of the 5 Democrat Party judges, 4 went to garbage law schools, and the one Yale graduate is a leftist reform "Jew."

          1. In case I haven't mentioned it lately, fuck you.

            1. Go fuck yourself, traitor.

        2. Where are you getting the no postmarked from? That's not been my read.

          Yeah, it's as stark a federalism issue as there is. I'm kinda horrified 4 Justices went the other way.

          1. You're horrified? I'm not. These guys are, ultimately, Republican operatives.

          2. Please read the last sentence of the first paragraph, the part in parentheses.

            1. Got it. At first I thought you were talking about your post and was looking and looking for parens.

              In its ruling, the Pennsylvania Supreme Court said that ballots could be counted if they were received by 5 p.m. Nov. 6, as long as they were mailed by Election Day, Nov. 3. It also said that ballots without a postmark would "be presumed to have been mailed by Election Day" unless there was strong evidence to the contrary.

              That is different from the original takes I read. And...yeah, I don't know if I love that part. I'm not sure how often there are no postmarks, and I don't know how easy it'd be to take advantage of that, but that's not where I draw the access-security line, and I'm pretty fanatical about the franchise.

              But as you said, not our decisions, or the SCOTUS' to make.

              1. The ballots are accompanied by a signed, dated declaration. If it's dated November 4, the ballot isn't counted.

                Again, this theory requires a bloc of voters who decide to wait until November 4, backdate their declarations, and hope the Post Office doesn't postmark the envelopes. It's just not plausible.

                1. "Again, this theory requires a bloc of voters"

                  It only requires a "bloc" of voters if you assume nobody is engaged in ballot fraud.

                  1. And your assumption is that there are loads of Democrats in a massive conspiracy to commit voter fraud, while of course Republicans would be shocked at the thought. Except for the ones who have actually been caught at it.

                    1. When people are upset, they do stupid things. Look at the two lawyers who threw a Molotov cocktail into a police car. They are in serious trouble.
                      All you need is to find a lot of people who are very upset that Trump appears to have won. It will not be hard to find counties with Dem elected officials that vote majority for Trump. There will be Dem party activists with names and addresses for every registered Dem who did not show up at the polls and whose ballot has not yet been received. They will be out in force late on Nov 3. Ballot harvesting is still illegal in PA, but who cares. These people will knock on doors and ask people for their ballots. They will count on the voter being upset that Trump may win. It won't be hard to find people willing to sign false affidavits. I mean, if people are willing to throw Molotov cocktails because of current affairs, they will be willing to back date an affidavit. The GOTV person will either help them fill them out...or fill them out for the people.
                      Then off to the county board of elections. How good is security there? Someone can slip a few ballot envelopes into the batches.

                    2. Your fan fiction would be noticed in moments in the real world.

                    3. GMT,

                      Among the other flaws in your scenario, you are assuming the existence of voters who:

                      1. Are angry enough at Trump's apparent win to collaborate with an unknown 11PM visitor to vote fraudulently, and, at the same time

                      2. Haven't bothered to vote yet

                      Further, you are assuming that none of these people,rather than going along will be angry enough at the visitor to call the cops, or the newspapers, thus blowing the whole plot.

                      You should think it over.

                    4. No, I'm assuming that elections officials are sometimes corrupt, and have access to unused ballots. Which of these assumptions are you going to attack as obviously untrue?

                      I think the primary challenge of any election system is safeguarding it's integrity against the people running it.

                    5. I was discussing GMT's scenario of fraudsters fanning out at 11PM to get people who haven't voted to fill out fraudulent ballots.

                      You're assuming there are a lot of unused ballots lying around. What are they? Regular ballots? Absentee ballots? Why would there be unused absentee ballots around?

                2. Or ballot harvesters like in Somalia MN and Houston TX.

                  1. Well, mask off on the racism, eh?

                    1. Did Americans ever ask to have their country filled with these third worlders?

              2. States and local election authorities have had to deal with the
                illegible or missing postmark issue in the past--it's not like it just started happening in 2020. This year there's been more attention to the issue, and the USPS is supposed to be postmarking ballots in some situations where they didn't in the past--but even if they got that 100% right it wouldn't resolve the issue of illegible postmarks.

                Some states, including those with conservative legislatures like Ohio and Iowa, have adopted laws that allow election authorities to use other markings from the USPS like the orange routing barcodes to date mailed in ballots. Others explicitly rely on the date of the declaration from the voter. Some states require such ballots to be rejected. Others don't have explicit guidance in the laws and local election authorities do their best to "do the right thing".

                Until Trump decided to start ranting about mail in voting, though, this was never a partisan issue.

                1. Oh yeah, it's not scalable. But it doesn't seem necessary to me either.

                2. And how do you deal with ballots/envelopes that show up in the batches that aren't postmarked? What are the security arrangements for the ballots/envelopes? People are crazy right now. How hard would it be to slip a few extra ballots/envelopes into a batch?

                  1. I literally just tried to explain what states have historically done with ballots with no postmarks or illegible postmarks--they're generally treated the same. The answer is that it's complicated and not consistent from state to state, but both Republican- and Democratic-led legislatures have tried to deal with the issue in various ways in the past. This year you're seeing the issue politicized and so in states with split government like Pennsylvania and Wisconsin the issue is ending up in the courts rather than being resolved through the political branches.

              3. You have a gift for understatement, Sarcastr0 = And…yeah, I don’t know if I love that part.

                Not that this would ever happen, but if I were a Team D ward/precinct captain, it would be an easy matter to harvest batches of ballots and drop them off each of Wed, Thurs, and Fri. Don't need a postmark (according to the executive order), and the person named on the ballot does not have to appear (according to the executive order). But...this would never happen.

                NJ is a cesspool of corruption; do you think PA is different? 😉

                1. To 'harvest' like that at any kind of scale isn't really possible.

                  1. Exactly what kind of "scale" do you think is needed? Check with Al Franken, he has a great grasp of the procedure.

                  2. In a close election the scale needed isn't that great.

                    Look, you'll never persuade people there isn't really such a thing as burglary by demanding that they not lock their doors when they're away. You'll never persuade people that embezzlement is a fairy tale by shutting down the audit.

                    And that's what you're attempting to do here: Convince people there's no ballot fraud, (Or anyway, not enough to matter.) at the very same time you're, right out in the open, systematically disabling all the things that prevent ballot fraud.

                    If you wanted Republicans to think the election had been stolen, I can't think of what you'd do differently. Literally, short of Biden going on national TV and saying, "Yeah, we're going to steal the election. What's it to you?" I don't think you could more effectively persuade Republicans you were in the process of stealing it.

                    In the lowest trust political environment since the lead up to the Civil War, you've got to be doing this? Why, you want another civil war?

                    This should have been the most "by the book" election in living memory, ever "t" crossed, every "i" dotted, every rule obsessively followed with suspicious people watching every step. Instead it's turning into the opposite: No opportunity to enhance distrust is being passed up.

                    1. It scales linearly with the number of people who need to be in on the conspiracy you are positing.

                      That's not going to sway any election, even a close one.

                      But y'all are committed to the election being illegitimate; have been for the past couple of months.

                    2. If you wanted Republicans to think the election had been stolen, I can’t think of what you’d do differently.

                      If Biden wins Republicans are going to think the election was stolen regardless. Trump has been telling them that for months, and his cultists have been yapping about vote fraud forever, despite never actually, you know, finding it, except by Republicans. And there have been plenty of investigations, by Kris Kobach and the like. (OK, he's an idiot, but he's your idiot.)

                      Don't blame the Democrats because you believe that contemptible piece of shit in the White House and can't imagine why he's not overwhelmingly popular.

                    3. The scheme you're positing--someone manages to find a large group of voters who didn't bother to vote on November 3, convinces them all to commit fraud, smuggles the votes into the post office, and it all stays quiet--is ludicrous. Among many other things, someone knocking on the door at midnight to say "hey, wanna commit fraud?" is going to get a lot of angry responses.

                      If Pennsylvania is decided in a close vote, no sane person is going to believe that it was swung by this sort of implausible plot, and if you restore this barrier, people will simply choose to believe in some other wildly farfetched conspiracy. I decline to believe we should arbitrarily disenfranchise voters in order to cater to insane people.

                      This should have been the most “by the book” election in living memory, ever “t” crossed, every “i” dotted, every rule obsessively followed with suspicious people watching every step.

                      Why? Because Trump is running around claiming with no evidence that it'll all be rigged? What makes this election special? Voters should get reasonable accommodations in every election; this one is no different.

                    4. Or:

                      Look, you’ll never persuade people there isn’t really such a thing as disenfranchisement of minority voters by shutting down their neighborhood polling places and making them stand in 10-hour lines. You’ll never persuade people that discriminatory barriers to voting are a fairy tale by making reenfranchised felons pay fees whose amount you don't know and won't find out or by allowing for only one drop box in a majority-minority city of 4.5 million people.

                      And that’s what you’re attempting to do here: Convince people there’s no disenfranchisement of minority voters, (Or anyway, not enough to matter.) at the very same time you’re, right out in the open, systematically making it far harder for them to vote than rural white voters.

                      If you wanted Democrats to think the election had been stolen, I can’t think of what you’d do differently. Literally, short of Trump going on national TV and saying, “Yeah, we’re going to prevent minorities from voting. What’s it to you?” I don’t think you could more effectively persuade Democrats you were in the process of stealing it.

                    5. Thrax, it won't get angry responses.

                    6. To quote K, "people are dumb". A charismatic fast talker could probably sucker a bunch of people into thinking that since the Supreme Court said mail ballots could be accepted until three days after the election, it's okay for people to submit their ballot later. Who's going to call them out on it? The people who committed a federal felony by filling out and submitting their ballot late?

                    7. You only need one response angry enough to call the cops.

                      This scenario is absurd beyond belief.

                    8. you’ll never persuade people there isn’t really such a thing as disenfranchisement of minority voters by shutting down their neighborhood polling places and making them stand in 10-hour lines. You’ll never persuade people that discriminatory barriers to voting are a fairy tale by making reenfranchised felons pay fees whose amount you don’t know and won’t find out or by allowing for only one drop box in a majority-minority city of 4.5 million people.

                      He has persuaded himself there is no such thing, despite all that.

          3. If there's no postmark, they can still be accepted. It's in all the news reports.

            "Ballots can be counted if they lack a postmark, a legible postmark or some proof of mailing, unless a “preponderance of the evidence” shows it was mailed after Election Day, the court said."

        3. Problem is, the State judges basically rewrote the existing law.

          1. How many different arguments are you going to try?

            The judges found on the validity of an executive action under the state constitution.

            1. Remember:

              "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof;"

              Not by "Executive action" and not by State judges rewriting the law.

              In fact, the state judges admit "There is no ambiguity regarding the deadline set by the General Assembly,’"

              But manage to mangle and change the deadline by somehow using a "Elections shall be free and equal" clause.

              1. 1) It's not at all clear that's nondelegable
                2) The state constitution constrains and defines state legislative action, not the US Constitution.

                1. The state constitution constrains and defines state legislative action, not the US Constitution.

                  This is just wrong. There are plenty of provisions in the US Constitution which constrain and define state legislative action. The state constitution is only the final word on the state legislature's powers in areas where the federal constitution has nothing to say. When the federal constitution has something to say, and the state constitution has something different to say, the federal constitution wins.

                  And it so happens that Article 1 of the federal constitution does have something to say about how the manner of federal elections is to be prescribed. It says that the manner is to be prescribed by the state legislature, subject to Congress's right to make modifications.

                  It says nothing about any role for the state judiciary in making modifications to the state legislature's prescribed manner of conducting federal elections in the state.

              2. They didn't change the deadline, sweetheart, they deemphasized postmarks--which are highly unreliable--as proof of compliance with the deadline. I see no mention of postmarks in the state or federal statutes.

                1. You know what's better than postmarks?

                  Actually having the ballot in hand. Which is what was actually required under the law.

                  "(8) No absentee ballot under this subsection shall be counted which is received in the office of the county board of elections later than [eight o'clock P.M. on the day of the primary or election] the deadline for its receipt as provided in section 1308(g)."

                  1. Yes, very nice, and Pennsylvania also provides for mail-in voting and has a special "Free and Equal Elections" clause in its constitution, and mindless formalism in the service of disenfranchising voters who are just trying to cast their ballots without getting sick is not a good look.

                    1. There's nothing unfree or unequal about demanding that ballots arrive by election day.

                    2. During COVID, Brett? That's not nearly as clear as you've decided it is.

                    3. Yes, during COVID. COVID doesn't justify undoing every protection of the law.

                    4. Nobody is being disenfranchised; your hyperbolic rhetoric is ridiculous.

                    5. Being forced to choose taking risks with COVID and voting is kinda denying the vote to people, Hank.

                    6. If someone deposits a valid mail-in ballot in a mailbox on Election Day and it's not counted because the USPS doesn't postmark it, that's being disenfranchised. Sorry if that hurts your feelings.

          2. The gloves are off. The laws are what any majority of the PA Supreme Court says it is, the language of the statute be damned.

        4. Except the State Constitution names Congress as the branck of govt that sets election laws. Not the judiciary.

          1. I think I missed the recent change where the US Supreme Court reviews state Supreme Court rulings on how to interpret their own constitutions. Or are you just saying that the Pennsylvania court got it wrong, but the US Supreme Court was indeed correct to let their decision stand?

            1. Yes, but counting ballots for federal races is an issue of federal law.

              1. Sure, the federal courts can deal with the relevant federal laws. iowantwo proposes a topic that is purely of state constitutional law, however.

            2. SCOTUS should stay the State Supreme Court until they explain where their power supersedes the enumerated power of the legislature to write election law.

            3. I think I missed the recent change where the US Supreme Court reviews state Supreme Court rulings on how to interpret their own constitutions.

              The question at issue is whether the election is being conducted in the manner prescribed by the Pennsylvania legislature. This is an Article 1 federal question.

              The state constitution may or may not generally permit the state judiciary and / or the state executive to adjust the Pennsylvania legislature's laws, but if they do so, such that the election is held contrary to the manner prescribed by the Pennsylvania legislature, this is contrary to the federal Constitution and correctable by the federal courts.

        5. About that no postmark stuff. Does everyone commenting get postmarks on all their mail? Mine seems to come mostly without postmarks.

          1. Mine almost exclusively comes with, whether mass mail or individual.

            1. In general, mail with pre-paid/bulk postage doesn't need to be postmarked because the primary purpose of the postmark is to cancel the stamp. This general rule doesn't apply to ballots, however, and postal workers are supposed to postmark all ballots. Earlier this year, the USPS IG found that sometimes they were getting confused and not doing so, but they've been trying to re-train employees to make this less likely. This is a pretty good article on the topic:


        6. Tell me, XY.

          Why do you think it is only Democrats who might commit fraud?

          I mean, there are some pretty imaginative scenarios being suggested on this thread. Do you imagine that Republicans are incapable of pulling them off, or do you believe that they are so honest and principled they would never, ever, engage in vote fraud?

          You're sort of giving the game away, ISTM.

          1. "Why do you think it is only Democrats who might commit fraud?"

            We don't. But when Republicans get caught committing it, Democrats blow it off. (When Democrats get caught, it goes straight to the memory hole, unacknowledged.) Which is fairly good evidence of who's committing more of it.

            Is political trust at an all time high, such that every safeguard against fraud can be dispensed with?

            Again: If you actively wanted the losing side to think they'd been robbed, I can't think what you'd do differently.

            1. "Again: If you actively wanted the losing side to think they’d been robbed, I can’t think what you’d do differently."

              I don't really understand the Republican bias towards eliminating fake votes while caring not at all about the effect of preventing legitimate votes. One fake vote has the exact same effect as one vote denied, so an election is equally illegitimate if it's won because a bunch of legitimate votes weren't counted. You'd think we'd be having discussions about how to reduce the risk of fake votes while still allowing the maximum number of legitimate votes to be counted (e.g., bernard11's suggestion of allowing unpostmarked ballots received the day after the election since there's no such thing as same-day USPS delivery anymore), but instead there's this constant goal to just eliminate any possible fake vote regardless of how many legitimate voters that approach disqualifies.

              1. "Legitimate votes" are votes cast in compliance with the law. Enforcing the law, tautologically, doesn't eliminate legitimate votes.

                If you want your vote to count, follow the damned rules, they're not secret!

                1. Even accepting your premise that it's okay to create obstacles to voting that have the effect of reducing the number of votes to a greater degree than it reduces the risk of fraud, the logic doesn't extend to the postmark issue that's been the focus of most of the discussion here.

                  Whether a ballot gets postmarked or not is largely out of the control of the voter. In theory, you can go to a post office and demand that they apply a hand stamp in your presence, but for some people the whole reason they're voting absentee in the first place is they can't physically make it to deal with the ballot in-person. What is surely beyond the control of the voter, though, is whether or not the postmark is legible by the time it reaches the election authority. Yet you and many others here seem totally happy to just toss out an arbitrarily large number of ballots with illegible postmarks because you can concoct some theoretical scenario in which fake votes might be introduced with illegible postmarks. Here, the voter has done everything in full compliance with the law, but you're happy to invalidate their ballot and seem to think that this somehow makes the election more legitimate when really it's likely tipping the scales to a larger degree than fraud ever does.

                2. Enforcing the law, tautologically, doesn’t eliminate legitimate votes.

                  Of course it does. Any obstacle you set up will prevent some legitimate votes from being cast, simply by making it difficult for some voters. Any test you apply will erroneously disqualify some legitimate votes.

                  For someone who hates government, you sure have an odd faith in its ability to set up a perfect screening system that doesn't stop any legitimate votes. Or maybe you don't think that at all, but just think it's to your side's advantage to block as many votes as possible.

            2. Let’s see:

              Democrats “blow off” (wut?) republicans who are busted for election fraud.

              Dems also “memory-hole” Dems getting busted for election fraud.

              And this PROVES that Dems are committing election fraud at amazing levels the likes we’ve never seen because, presumably, it all gets memory-holed. (Meanwhile, the gop instances we do remember are blown off, but remembered, or something.)

              This might be the most Brett Bellmore that Brett Bellmore has ever Brett Bellmore’d.

            3. We don’t. But when Republicans get caught committing it, Democrats blow it off. (When Democrats get caught, it goes straight to the memory hole, unacknowledged.) Which is fairly good evidence of who’s committing more of it.

              You realize that's insane, don't you? Because we don't hear about Democrats committing fraud, they must be committing a lot of it.

              Yes. Literally insane. Joined up with QAnon yet?

          2. You ask a fair question. Team R could do the same thing. Of course, I am not saying that will happen....

    2. "Ballots in by Election Day is a no brainer unless you like chaos."

      Chaos . . . such as the hellscape in which 18 states have for years accepted ballots received after Election Day?

      1. Theres been more and more controversy over people finding and losing mailin ballots these past few elections and with COVID its going to be even worse.

        1. Flailing, desperate, vanquished clingers are among my favorite culture war casualties.

          Who do you figure Biden should nominate for the Supreme Court next spring? Obama seems a given to me . . . but who would you want/expect to see?

        2. Yep, it seems that plenty of conservative warriors are torching collection boxes, placing their own ballot-harvesting boxes, dumping ballots undelivered, etc. Doing whatever they can to rob their fellow citizens of the vote. Because they know they can't win this one fair and square.

          Oh, you're talking about the handful of Trump votes that were found in the trash somewhere, aren't you?

          1. I didn't make this political. Republicans could theoretically keep finding votes out of nowhere until they have the result they want in races just as easily as the Dems do if they get enough practice. A true Election Day deadline benefits everybody.

            1. Republicans have for years pushed for counting (certain) ballots received after Election Day (with respect to military ballots, for example).

              Republicans also have traditionally been vote suppressors, though. They figure they can't win if all legitimate votes are submitted and counted -- a few of them acknowledge it openly, the others hide behind disingenuous euphemisms.

        3. More and more people are saying it, folks!

        4. Manufactured controversy.

      2. Because those states, legislative branch set that by statute.

  9. I don’t know why you would call Thomas, Alito, Gorsuch and Kavanaugh conservatives. They are partisans trying to help their political side. The Constitution gives the states the responsibility to run Presidential elections. The conservative view would allow the states to do just that.

  10. I hope when the the Dems are counting all the rigged votes Robert's is using the chance to explain the difference between a State court of last resort and a federal court. I'm sure that lecture on principle is going to make interesting NYC cocktail party conversation.

    "Well you see we had to allow rigged ballots from PA because it came from a state court..."

    1. I like when you guys say out loud that for all the talk about legal principle, that it's really just about your team winning.

  11. The rulings from the Pennsylvania Supreme Court were in bad faith. There's a good argument that it wasn't federally reviewable, but let's not lose sight of that.

  12. What could go wrong? How could envelopes/ballots show up without postmarks? Just look at what happened in 1948 in Texas:

    1. It's clear the Democrats are intending to steal the election. I'm hoping this particular election has violence, regardless of which side starts it.

      1. I don't know if you are being sarcastic or ironic (or if you just feel that way early in the morning...I know I feel and say awful things early in the day). I don't want violence. I fear that we could end up with the race hinging on PA's vote and we have Trump with a 2,000 vote lead and 3,000 envelopes without postmarks show up at 4:59 pm on Nov 6 that are 95% for Biden. I can only hope that the PA GOP files another lawsuit, this time in Federal court, challenging these ballots under federal law.

        1. I want violence because I don't want to live with liberals. I've said for a decade now we need to split America into two countries. Violence will help bring that about it, regardless of who starts it

          1. I don't know if you've noticed, but conservatives around here don't much care for you either.

            1. Yeah, well, most "conservatives" are totally on board with flooding America with illiterate Hispanics.

              1. There are plenty of nativists around here.

                And yet you are still avoided, due to being a bloodthirsty misogynist racist antisemitic lunatic on the Internet.

                Many speculate you're actually a secret liberal, you are so distasteful.
                I doubt that, but it does show you won't be welcome even in the conservatopia you want to wade through a river of blood to create.

                1. He’s a fat blowhard and coward. His big talk of violence almost always comes with a “I’m not going to PERSONALLY commit violence, I just like the idea of it.”

                  1. Yeah, I generally ignore him these days.

                    Though he's not alone in this violence nonsense around here. Has me a bit worried about post-November.

                    1. All the political violence currently going on, meanwhile mustn't bother you since you pretend it isn't happening.

          2. Are these two countries you're suggesting the cities and the rural areas? That's going to be an awfully weird map, but basically the only way to let you avoid affiliating with liberals since even in the reddest sates the cities are still mostly Democratic.

            Even if you look at a whole state level, what's going to happen with places like Colorado and New Mexico that are now consistently blue but surrounded by red states? I guess if Arizona flips this election which is looking likely, we can give it to the blue team along with those two and just give Utah, Wyoming, Idaho and Montana a big hug from the Western Blue States?

            1. You make people move. Simple.

              1. Well, that's the first time I've heard someone look at the Partition of India and think "that went really well, why don't we try to do that in my country?"

  13. Trump should order the military to guard every ballot and USPS box in Pennsylvania. If that's how the left wants to play, fight them at their own games.

  14. I will always favor erring on the side to count votes, but I disagree with this decision. I believe any absentee ballet with a November 3rd post mark should be counted, even if it arrives after election day (within reason say 6 days). I would not count ballets that have no post mark. If you are voting on November 3rd then do it in person. If you must mail an absentee ballot on November 3rd, then go to your local Post office and insist on it being post marked in your presence. I would be as lenient as I can be, but I have limits.

    1. What would you think about accepting unpostmarked ballots received on the 4th only?

      I don't think there is a lot of same-day delivery of mail in the country, so it's a reasonable inference that any ballot delivered on the 4th was mailed on the 3rd or earlier.

      1. My hope is that this is an academic exercise and we don't have ballots delivered after the 3rd without postmarks.

        1. You sound like Barrett at her confirmation hearing.

          1. Read: Any judge being confirmed after Bork.

  15. I think it's a reasonable inference that any ballot delivered on the 4th wasn't delivered on or before the 3rd, which is what the state law actually demands.

    I get it that you think PA should have different election laws. I get it that the PA judiciary thinks PA should have different election laws. The thing is, who didn't think that?

    The people entitled to write the election laws!

    Your basically arguing for an end to the rule of law, in favor of rule by judicial fiat. Which fiat is tacitly assumed to always be better than the actual laws the legislature enacted, because reasons.

    1. Brett, how do you feel about the GOP lawsuits trying to block various laws passed in states like Nevada or Delaware to expand mail-in voting? Isn't that Republicans attempting the same exact thing that you're complaining about here?

      1. I'm not too enthusiastic about changing election laws right before a viciously contested election, but legislatures are, at least, legally entitled to do so. That's my position, regardless of what the GOP may be litigating.

  16. "I think it’s a reasonable inference that any ballot delivered on the 4th wasn’t delivered on or before the 3rd, which is what the state law actually demands."

    Has the exception for military ballots been removed, invalidated, or even challenged? How does that influence the analysis?

    1. If the exception is in the statute, it's hardly relevant to my point.

  17. Meanwhile, it looks like DeJoy got a lot done.

    Just one more trump thug.

  18. What would at least add a little hint of transparency, to have an accurate tally of votes cast, was required, by 8am Wednesday morning. The counting can take a few days, along as it doesnt surpass the number of votes cast.

  19. I'm not sure how the "Constitutional Originalists" decided that they didn't want the states to make rules about their statewide voting.

    Can someone explain to me how Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh - all of who purport to be constitutional originalists might claim the constitution allows for the federal government to tell the state how to count their votes in a pandemic?

    Why do I ask? They didn't offer any explanation as to why... it's just partisanship. It would benefit Republicans to cut off counting ballots.

    So tell me again, how Amy is a constitutional originalist as well?

    This has all the makings of 45 issuing an EO on Nov 3rd to stop mail in ballot counting, Barr backs him up, 45 goes to SCOTUS, and 5 "Originalists" rule in his favor.

  20. This has all the makings of 45 issuing an EO on Nov 3rd to stop mail in ballot counting, Barr backs him up, 45 goes to SCOTUS, and 5 “Originalists” rule in his favor.

    You are confusing lots of jurisdictional lines with your post.
    This starts with the Dem Sec of State overruling the statute, and ordering votes delivered after the cutoff mandated by the legislature. Also The SoS declared,contradicting the legislature, that ballotts with missing or unreadable post marks must be counted.
    So the conflict starts with the legislature getting overruled by a party that lack State constitutional power to act as they are acting.
    Republicans go to court to get the SoS back in there constitutional lane. Judges then pick sides, instead of reinforcing the constitutional power of the legislature to set laws pertaining to elections.
    Chief Justice Roberts, joined the radical liberals on the court to also ignore the fact the State legislature enumerated power to write election law, has been violated.

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