Pennsylvania’s chief election officer announced on Tuesday that around 10,000 ballots were received between the close of polls on Election Day and the evening of Nov. 6 — a number far too small to undermine President-elect Joe Biden’s margin of victory in a critical battleground state.
The approximately 10,000 mail ballots are at the center of a case in front of the Supreme Court that President Donald Trump and his allies have pushed for, as they advance a broader strategy that’s less about actually making a cohesive legal argument than it is about undermining trust in the democratic process.
The case is perhaps the most prominent current lawsuit backed by Trump, as he seeks to undermine confidence in Biden’s victory. Trump and his allies have baselessly claimed that there was widespread election fraud, a charge that they have not substantiated to any significant degree. Both before and after the election, election administrators and voting experts rejected the premise of widespread fraud in American elections, saying that when it does occur, it is isolated and not a sign of a systemic problem. The New York Times surveyed election officials in nearly every state after the election, and said that “none reported any major voting issues.”
In Pennsylvania, mail ballots are typically due by the close of polls on Election Day, regardless of when they’re postmarked. The state Supreme Court extended the deadline in the state following a Democratic-backed lawsuit, citing the coronavirus pandemic and deliverability concerns within the U.S. Postal Service.
Republicans sought to challenge the state Supreme Court decision to the U.S. Supreme Court. The high court first deadlocked, 4-4, in mid-October on an emergency plea to block the state Supreme Court extension. The court then declined to take action again shortly before the election, but left open the option to return after the election to make a decision. Last week, Justice Samuel Alito ordered that those late-arriving ballots be segregated, but said they could still be tallied if they were “counted separately.”
The 10,000 ballots are immaterial to Biden’s victory in the critical battleground state. He currently leads by more than 47,000 votes, as the state continues to count ballots. Secretary of the Commonwealth Kathy Boockvar announced that there were approximately 94,000 provisional ballots issued to voters at the polls throughout the state on Election Day. Provisional ballots are cast when there’s a question about the voter’s eligibility. The qualifications are checked following the election and the ballot is not counted if the voter is ineligible, so not all 94,000 ballots will be counted.
“The counties have done an impressive job counting a record number of mail ballots and now are canvassing the provisional ballots, each of which must be considered individually,” Boockvar, a Democrat, said on Tuesday. “Millions of Pennsylvanians voted and made their voices heard in a free, fair and open election last week. I am so proud of the election officials and poll workers who worked tirelessly, amid a pandemic, so voters could decide this election.”
Some voting-rights experts have expressed confidence that the U.S. Supreme Court would ultimately not toss out the late-arriving ballots in Pennsylvania, noting that voters followed the guidance of their election officials at the time. But the case could instead serve as a major marker for how future election-law litigation would go, they said.
For this case, “I don’t think people need to worry about this election,” Wendy Weiser, director of the democracy program at the Brennan Center, told POLITICO before the election. “I think people need to worry about the direction of the court and what it might be doing to voting rights going forward.”
Instead, the case could serve as an important marker over the “independent legislature” theory. The theory, in short, argues that the Constitution grants the power to state legislatures to set election laws, and that courts have usurped that role.
In a pair of briefs filed on Monday, 11 Republican state attorneys general argued that the Pennsylvania state Supreme Court’s order violated the Constitution.
“The power is specifically granted to state legislatures to direct time, place and manner [and] frameworks for their state’s election,” Missouri Attorney General Eric Schmitt, who led one of the two briefs, said at a news conference on Monday. The Pennsylvania state Supreme Court “overstepped their bounds and encroached on the legislature’s authority,” he asserted.
That theory was advanced perhaps most famously in then-Chief Justice William Rehnquist’s concurring opinion in Bush v. Gore, the Supreme Court fight that effectively decided the 2000 presidential election. Four current justices have either outright endorsed or signaled some level of support for Rehnquist’s theory: Clarence Thomas (who signed on to Rehnquist’s original concurring opinion), Brett Kavanaugh, Neil Gorsuch and Alito.
Additionally, 10 of the 11 Republican attorneys general embraced the president’s arguments about widespread election fraud. But their brief cited isolated cases from past elections, not a widespread problem with this one.
It is part of a broader assault on the legitimacy on this year’s election from the Republican Party.
In Georgia, the state’s Republican U.S. senators — Kelly Loeffler and David Perdue — both called on the Republican secretary of state, Brad Raffensperger, to resign, claiming widespread malfeasance without alleging any particular instance of it. The state Republican Party and its House delegation both signed letters to Raffensperger with similar claims. Raffensperger strongly rejected both calls for him to step aside and that there was a problem with the election.
“We’re going to make sure that we follow through the process, that we’re going to count every legal ballot, and the results will be the results,” he said in an interview with The Atlanta Journal-Constitution. “I’m a constitutional conservative. I follow the law.”
The GOP broadside on Raffensperger caused a case of strange bedfellows, with some voting-rights groups that have previously clashed with the Georgia secretary of state’s office coming to defense of the election.
“Questioning the results of our elections does a grave disservice to Georgia’s voters — and also to the tens of thousands of people who worked to ensure that our November 3 election was conducted safely and securely in the middle of a pandemic,” Aunna Dennis, the executive director of Common Cause Georgia, said in a statement on Tuesday.
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