Thread by @Elaijuh

Remember the PA mail ballot deadline extension that the state Supreme Court ordered and PA GOP appealed to SCOTUS?

Those 10K ballots are stuck in purgatory, left out of the certified totals.

They won’t change any outcomes, but here’s why they matter:
inquirer.com/politics/elect…

There were 10,097 ballots received during the grace period: 9,428 postmarked by 11/3 and 669 with missing/illegible postmarks.

Those 10K ballots aren’t currently included in the certified totals for the presidential and congressional races, (though they are for the state ones.)

Why isn’t PA Dept of State including them? Spokesperson:

“SCOTUS ordered counties to strictly segregate these ballots, and it was determined that they would be most clearly segregated by not adding them to the totals until further action by the court.”

That’s weird and maybe wrong, some lawyers and experts said, bc the PA Supreme Court order hasn’t been specifically blocked or overturned:

Anyway, if these ballots won’t change any outcomes, why do they matter beyond the individual rights of those voters?

Because they’re still being challenged in the U.S. Supreme Court, and the question is a potentially really big one.

The U.S. Supreme Court is being asked about the powers of state legislatures to determine how elections are run, and the powers and roles of others, including the state courts.

I won’t get too deep into it here (plus I’m not the expert), but if you want to get into it, what you’ll want to research is “independent state legislature doctrine”, e.g. papers.ssrn.com/sol3/papers.cf…

The U.S. Constitution gives state legislatures the power to determine how congressional elections are run and presidential electors are chosen.

The question is, does that literally mean legislatures specifically? Not states generally, or the whole lawmaking process?

The PA legislature determined the rules for the election, including the mail ballot deadline.

The PA Supreme Court extended the deadline.

That violates the Constitution, the PA GOP argues, by taking the legislature’s power to decide election rules.

You can see why that might seem appealing for PA Republicans, especially heading into a redistricting year in which some of them fear their maps could end up at a majority-Democrat state Supreme Court.

Remember, after the PA Supreme Court drew a new congressional map in 2018, top Republican lawmakers (who control state leg) asked the U.S. Supreme Court to block it, saying the state court was taking the legislature’s U.S. Constitutional right to determine how elections are run.

But an interpretation that state legislatures — meaning specifically the state legislatures, and nothing else — have power of elections would have massive ramifications, experts say. Imagine if state courts can no longer get involved. Or what happens if the governor vetoes?

The U.S. Supreme Court will discuss the PA mail ballot deadline cases Jan. 8 to decide whether to take them.

They’ll likely tell us the next Monday morning, Jan. 11, whether they’re gonna take up the cases.

Stay tuned!

inquirer.com/politics/elect…