Posted on 10/26/2020 11:06:24 AM PDT by Revel
This time we win!
The PA legislature has decided how the state chooses its electors and written it into law. I think the state Supreme Court has a say if the legislature tries to unilaterally change a law passed by them and signed by the governor.
Are these guys effing idiots?!?! Wait one more day until ACB is on the damn Court. Doing this now will allow Roberts and crew to shoot it down before she is seated.
Didn’t Pennsylvania also rule recently the signatures on mail-in ballots don’t have to match? Sounds like a more serious problem to me.
Lets hope that is in there. And lets hope that new justice gets to take part.
“They should have waited until Barrett is on the court.”
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Well, they’ll be voting to put her on the court in the 7 PM hour this evening.
Like I said in that post, this is a last resort, not a first resort.
I think the legislature has a duty to act if it is likely that the state will not be represented in the Electoral College. In think that in that case, SCOTUS would side with the legislature.
-PJ
Maybe, but I'm not so sure.
I think it's implicit that the legislatures can determine the method of choosing electors consistent with their state's constitution.
The legislature of PA has already chosen that method and put it into law. According to the PA constitution if they want to change it they have to pass a bill and either have the governor sign it or get two thirds of each house to agree.
No one says they can't change it, just that they have to do it under the constitution.
I think it's very different than FL because it would unambiguously be in violation of the election laws the legislature already passed and I suspect SCOTUS would agree.
Maybe I'm reading your comment wrong...
If the Florida Supreme Court was repeatedly changing election law on the fly, then isn't the Pennsylvania court and governor wanting to extend the date to receive mail-in ballots also a violation of the election law that the legislature already passed?
Wouldn't it be in the power of the legislature to say that if the court changes the passed law, then the legislature has the right to change the law back to stop the court's overreach without oversight?
If the court refuses, then isn't it in the legislature's constitutional power to declare a one-time slate of electors because the governor and the court created unconstitutional chaos in the system and the legislature is obligated to step in and fix it?
-PJ
How does your statement "consistent with their state's constitution" square with Article VI Section 2:
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.Does "to the contrary notwithstanding" mean that the Legislature's execution of its Article II Section 1 power is supreme and is not constrained by any laws passed within the state?
-PJ
I assume she won't start her duties on the court until at least tomorrow.
I just hope this appeal doesn't get voted down tonight by Roberts and the liberal judges on the court.
“I assume she won’t start her duties on the court until at least tomorrow.”
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True dat. Now that she’s been confirmed she reports for duty tomorrow morning. She will hit the ground running!
Arguably, yes. It's an aggressive interpretation of PA's Free and Equal Elections Clause but the PASC provided its reasoning and claims it's a reasonable response to a natural disaster. SCOTUS hasn't yet chosen to slap them down.
Wouldn't it be in the power of the legislature to say that if the court changes the passed law, then the legislature has the right to change the law back to stop the court's overreach without oversight?
Nothing's stopping the legislature from passing new legislation closing the natural disaster "loophole", but they can't just declare it gone.
If the court refuses, then isn't it in the legislature's constitutional power to declare a one-time slate of electors because the governor and the court created unconstitutional chaos in the system and the legislature is obligated to step in and fix it?
Of course not. That's not the way our system of checks and balances works.
It isn't the legislature, particularly on a partisan basis, that determines whether a court action is constitutional or not.
Does "to the contrary notwithstanding" mean that the Legislature's execution of its Article II Section 1 power is supreme and is not constrained by any laws passed within the state?
There's nothing in the PA constitution than says the legislature can't determine how electors are chosen, so there's not really a conflict.
The state constitution does, however, determine the process for the legislature to make that choice.
It really can't be any other way. Without the law making process defined in the constitution how would the legislature do it?
For example, what would the margin of legislative votes need to be? Simple majority? Super majority? Declaration by the House Speaker and Senate leader?
How do the new rules get memorialized and published? A memo to the public?
Once you step outside the state's constitutional process for making laws the process is literally lawless and entirely up to the most powerful faction in the state legislature.
I don't think that's what the framers envisioned.
You wrote:
“If the court refuses, then isn’t it in the legislature’s constitutional power to declare a one-time slate of electors because the governor and the court created unconstitutional chaos in the system and the legislature is obligated to step in and fix it?
Of course not. That’s not the way our system of checks and balances works.”
This is incorrect, the PA legislature can step in and appoint a slate of electors. This was just discussed on Mark Levin a couple of days ago, if you are interested, and the Trump administration is also discussing this with them. My understanding is that at this point, the GOP-controlled legislature is reluctant to do this, but if the cheating becomes too outrageous, there is a very real chance they will elect to do this, just as the Florida legislature was preparing to do when the S/C stepped in, in the +Bush/Gore hanging chad fiasco.
I know Levin is saying this but his job as a talk show host is to stir up publicity and conversation.
The PA legislature is 100% a creation of the PA constitution. It wouldn't exist or have any legitimacy outside of that constitution
If the PA constitution says there's a process for creating state laws, including election laws, there's no way the legislature can operate outside that process.
Think about it. Do you really think the framers wanted to give this power to the strongest faction of a state legislature regardless of the constitution that created it?
The US Constitution gives the state legislators the power to decide on electors but that's only because they're the representative of the state's people, and those people collectively approved that process when the election laws were passed.
The legislature can't just change the laws willy-nilly with no accountability.
Nothing's stopping the legislature from passing new legislation closing the natural disaster "loophole", but they can't just declare it gone.
First, let's see if we can agree to stipulate that there are two parallel elections taking place: 1) statewide elections where the normal "checks and balances" of state laws and state constitutions apply, and 2) Presidential Elector elections that are ordained and established by the Constitution of the United State.
Within statewide elections for state offices, I'd agree that the governor signs laws passed by the legislature, and the courts oversee and interpret. But with Electors to the Electoral College, the Constitution says that the Legislatures choose the method of selecting Electors. There are no limits on that power.
Politically, I'd agree with anyone that making a unilateral choice to overturn the wishes of the voters is dangerous and risks being voted out of office. However, I'd say that it, in itself, is "check and balance" against a state's other offices from abuse. The Constitution names the state legislature as the final arbiter of Elector selection. What they say goes.
That's not the way our system of checks and balances works. It isn't the legislature, particularly on a partisan basis, that determines whether a court action is constitutional or not.
Again, we need to separate the statewide office elections from the federal elections.
States are sovereign governments. They delegated limited powers to the federal government for the common good of all the states. The President is the executive of the federation of states. The Senate is the ambassadorial forum for the sovereign states, and the House represents the desires of the people of the Unites States.
Senators represent the needs of their state to their peer Senators from the other states in the Senate, and they debate the priorities of each state's needs against the others (or so it was supposed to be).
The state legislatures control the method of selecting the Electors to the Electoral College, which in turn chooses the President. The President was not supposed to be the ruler of the people, he was supposed to be the executive of the federation of states charged with executing the laws of the United States.
Those are your checks and balances at the federal level to choose the President. State courts are not supposed to usurp the legislature's role in the selection of the federal executive. They can intervene in local races, but the Constitution gives them no role in the selection of the President. Article VI reinforces this.
There's nothing in the PA constitution than says the legislature can't determine how electors are chosen, so there's not really a conflict. The state constitution does, however, determine the process for the legislature to make that choice.
I will admit to not being fluent in the state constitution of Pennsylvania. That said, Article VI says that the process to make that choice is whatever the legislature chooses. Regarding the choosing of Electors, and only the choosing of Electors, if the state legislature decides to ignore prior law and make its own emergency choice, they have the Constitutional power to do so. The politics of it can be sorted out later.
Once you step outside the state's constitutional process for making laws the process is literally lawless and entirely up to the most powerful faction in the state legislature. I don't think that's what the framers envisioned.
But it is. The Constitution gives the state legislature the power to choose the method of selecting Electors and puts no boundaries on that. The Constitution also gives the state legislatures the power to call for Article V conventions to propose amendments to the Constitution, without governor or state court oversight. The Constitution also gives the state legislature the power to ratify amendments to the Constitution, without governor or state court oversight.
Nobody is suggesting that a Governor or a state court can overturn the ratification of an amendment, are they? So where do they get the power to overturn the method of selecting Electors to the Electoral College?
-PJ
Here’s the problem. The PA legislature is entirely a creation of the PA constitution. Any power the legislature has is granted to it by the state constitution and that constitution absolutely limits those powers, as it does for the Executive.
So this idea that the COTUS gives the state legislatures extra-(state)constitutional law making powers is just wrong.
And states manage their own elections - even for federal offices. If that wasn’t the case none of these state level lawsuits would exist. Everything would be done according to federal election law.
The framers said every state can choose their electors however they want, and the state legislature, as the peoples’ representative, is the right body to do it. But it obviously has to be done by enacting legislation and the rules for doing that are determined by the state constitution.
If not, what determines the form and enforceability of those laws?
The states were sovereign governments before the ratification of the Constitution. Their own founding documents established their baseline powers after the Declaration of Independence. They first attempted to unify under the Articles of Confederation.
By ratifying the Constitution of the United States, the several states delegated powers to the federal government. One of those powers was the plenary power of the state legislature to choose the method of selecting Electors to the Electoral College. By ratifying the Constitution, the state agreed to the stipulation that the legislature had sole power to set the process for selecting Electors.
Pennsylvania, and other Democrat governed states, are now reneging on that stipulation.
-PJ
And those same founding documents established the role of the state legislature and executive and the process they had to go through to enact state laws, including election laws.
By ratifying the Constitution, the state agreed to the stipulation that the legislature had sole power to set the process for selecting Electors.
The stipulation is the Legislature, not the Executive nor Judiciary of the state, is the body to choose electors. It still has to be done within the confines of the state constitution.
For example, the US Constitution says the state legislatures control the "time, place and manner" of electing representatives and senators, just like they control the selection of electors. If this gives them the plenary power you say it does the partisan majority could sit down on October 20th and say "Based on early voting I think our party's ahead. Let's end this thing tomorrow."
But of course they can't do that. They have to abide by the election laws they've already passed that spell out the election process.
Can they change those laws? Of course, but not by decree. By the legislative process.
Likewise, there are laws the PA legislature has passed defining the process for choosing electors. They can change those laws but they can't just ignore them.
As tempting as the idea is I think it just a deus ex machina device to avoid the reality that the PA Supreme Court is controlled by Democrats.
If the state legislatures really have this absolute power why haven't any ever exercised it before? You can say it's because we've never had a deadlock but a deadlock isn't a requirement in the US Constitution.
RE: #1
They have to abide by the election laws they've already passed that spell out the election process. Can they change those laws? Of course, but not by decree.
But that's exactly what the Governor and the state court did. Where's the outrage?
RE: #2
If the state legislatures really have this absolute power why haven't any ever exercised it before?
It's an emergency use of power. It hasn't been needed before because the opposition hasn't been as brazen before, and politically it would have been a risk before. This time, the legislature would be acting to prevent Pennsylvania from potentially being excluded from the Electoral College, which is their Constitutional obligation.
I've posted before that the Democrats count on the Republicans to be reticent to act boldly, and they use this against Republicans to push boundaries in the way of their agenda. This is a perfect example of that.
Republicans have historically used "worst case analysis" to talk themselves out of acting on the presumption that the worst case will be the case that comes to pass, so why bother? I say that the game is to keep the ball in play because one never knows what will happen until the clock runs out. The outcome is guaranteed if the Republicans concede with time left.
That's where we're at today. It's time for the Republicans to stake out the claim that they have the Constitutional power to set Elector selection law, and the court had no jurisdiction to change their laws. The PA GOP needs to argue this to SCOTUS, that the court encroached on their power - not that the court ruling was changing election law while the election was already in progress. Make the Democrats go on the defensive to justify their usurpation of legislative power.
-PJ
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