In its effort to challenge vote counts in key states, the Trump campaign has filed lots of lawsuits that have little chance of winning. But there is one suit that it should win — not only for the Trump campaign or the 2020 election, but for all elections in the future. It’s the court fight over Pennsylvania’s election rules, and it involves a fundamental issue that is important to all 50 states.

The first thing to remember is that the Constitution gives state legislatures the authority to make rules governing the conduct of elections for federal offices in their state. In October 2019, the Pennsylvania state legislature passed Act 77, which updated and revised the rules for elections in the state. For the first time ever, it allowed all Pennsylvanians to vote by mail if they chose, without requiring that they show they would be absent from their voting district on Election Day. Remember, this was pre-coronavirus, and Pennsylvania was moving toward greater voting by mail than in the past.

On the question of voting by mail, the legislature made one clear, unambiguous requirement: All mail-in ballots had to be received by 8 p.m. on Election Day. (It let stand an existing law that allowed military and overseas ballots to be received for seven days after Election Day.)

Then, in March of this year, after the arrival of the virus, the legislature revisited the law. It made some changes to accommodate voting in a pandemic. It rescheduled the state’s primary election and included measures to help reduce crowding at polling places. But it left untouched the requirement that all mail-in ballots had to be received by 8 p.m. on election night.

That’s where things stood as the presidential election approached. Then a number of Democratic groups filed a lawsuit against the secretary of state. The groups said the pandemic required that the deadline for receipt of absentee ballots be extended. The case went to the Pennsylvania State Supreme Court, which has a 5-to-2 Democratic majority. On Sept. 17, the court threw out the legislature’s deadline for ballots and created a new one: 5 p.m. on Nov. 6, three days after Election Day. The justices just made it up.

They did not claim that the existing law was unclear. “We are not asked to interpret the statutory language establishing the received-by deadline for mail-in ballots,” the majority justices wrote. “Indeed there is no ambiguity regarding the deadline set by the General Assembly.”

Nor did they claim that the existing law was unconstitutional. “We are not asked to declare the language facially unconstitutional as there is nothing constitutionally infirm about a deadline of 8 p.m. on Election Day for the receipt of ballots,” the justices added. Instead, the justices claimed that an “extraordinary situation” existed. They repeated a lot of the fretting Democrats engaged in earlier this year about the post office. And then they declared coronavirus a “natural disaster,” threw out the law, and wrote a new one.

Republicans immediately protested. The Constitution gives the legislature the power to make election law, they argued, and in March the legislature, fully aware of the coronavirus situation, passed a law governing the 2020 election. The court can’t just make up a new law. The matter went to the U.S. Supreme Court, which split 4 to 4 on whether it should intervene. (New Justice Amy Coney Barrett was not up on the case.) That meant the court took no action. Pennsylvania would keep accepting ballots for three days after Election Day.

Justice Samuel Alito protested vigorously. “The court’s handling of the important constitutional issue raised by this matter has needlessly created conditions that could lead to serious post-election problems,” he wrote. But Alito’s words went unheeded, and the election went on with the state supreme court’s new ballot deadline. The results in Pennsylvania, of course, are very close — it took days to call the race for Joe Biden — and the court-created deadline is part of a confusing and difficult situation. Along with Justices Thomas and Gorsuch, Alito concluded that the Pennsylvania case “has national importance, and there is a strong likelihood that the state supreme court decision violates the federal Constitution.”

So now, with the election over, the issue is headed back to the Supreme Court. And putting aside the specifics of the Pennsylvania situation, the matter concerns a hugely important principle, which is the constitutional authority of state legislatures to make election law for their states. Other states with no stake in the Pennsylvania results can see that. On Monday, 10 states — Missouri, Alabama, Arkansas, Florida, Kentucky, Louisiana, Mississippi, South Carolina, South Dakota and Texas — filed an amicus brief upholding the importance of the constitutional rights of state legislatures. “The Pennsylvania supreme court’s decision overstepped its constitutional responsibility, encroached on the authority of the Pennsylvania legislature, and violated the plain language of the [Constitution’s] Election Clauses,” the states, which are all governed by Republicans, wrote.

Who will win? Who knows, but it appears Republicans have a strong case that the Pennsylvania court exceeded its authority. “This is not some constitutional flight of fancy,” said John Yoo, the Berkeley professor and a former George W. Bush Justice Department official. “Justice Samuel Alito has already made clear his view that the Pennsylvania Supreme Court has violated the Constitution. ... If the federal Constitution directly grants those powers to the legislature of Pennsylvania, state courts have no authority to alter state election law for federal office, including the presidency.”

In the end, the case might have no effect on the presidential election results in Pennsylvania. But that’s not the issue at hand. The issue is who writes the election laws in the states — the legislature, or someone else? The Constitution is clear on the matter, and the U.S. Supreme Court needs to decide.

Byron York is chief political correspondent for The Washington Examiner.

(51) comments

KB Thomas

To Gary and Aim High: I think as Christians that we should remember that the line between good and evil is not between us and them; it is a line that runs through every human heart.

Aim_High

That same line between good and evil also runs between liberals and conservatives.

Liberals support feeding the hungry, caring for the sick, sheltering the homeless, and loving everyone. On the other side of the line, Conservatives support cutting food stamp benefits, gutting affordable health care, demonizing the homeless, and blocking equality rights. Conservatives are "CINO" Christian in name only.

Aim_High

Republicans hate Liberals 6 days a week but worship one on Sunday.

sail

You should do your own checking on the a algorithm of the batches that were presented in the PA votes. Statistically improbable,,,

Aim_High

The Judge dismissed the lawsuit in PA earlier today and said there is "no evidence of any fraud." Lawsuits in Arizona and Georgia were also dismissed... It's not surprising Biden always gets a huge portion of mail in ballots since he was encouraging people to vote by mail and Trump was pushing his supporters to go vote in person.

Here is the judges opinion from today. "It must be noted that the parties specifically stipulated in their comprehensive stipulation of facts that there exists no evidence of any fraud, misconduct, or any impropriety with respect to the challenged ballots. There is nothing in the record and nothing alleged that would lead to the conclusion that any of the challenged ballots were submitted by someone not qualified or entitled to vote in this election, At no time did Petitioners present evidence or argument to the contrary."

If Trumps best legal team can't produce any evidence of fraud on the ballots they're challenging, I doubt there is any. The court will continue reviewing all these lawsuits, but come Jan. 20th we're gonna have to move on.

sail

aim high,im convinced now "Those who cast the votes decide nothing ...

Those who COUNT the votes decide everything."

Aim_High

What makes you so convinced that it's the machines counting the votes that are the deciding factor? All the vote-flipping claims have been debunked... Everywhere the counts have been re-counted haven't shown any "fraud"... The reason Republicans lost is because they didn't have a viable candidate... any of the democratic candidates would have beat Trump, except maybe Yang. Trump only had an 11% chance of winning... if Republicans didn't make rules about when mail in ballots could be opened, we would have had a clear winner Nov. 4th and avoided all this fraud nonsense. Election integrity is one of president-elect Bidens issues he will be working on. Trump claimed the system was rigged in 2016 but hasn't changed anything in 4 years... sad!

Aim_High

President-elect Joe Biden has now received at least 79.1 million votes, or 10 million more than the previous record set by President Barack Obama in 2008. Americans are happier Trump was defeated than they are about Biden's win.

Trump did such a terrible job the highest voter turnout ever recorded was to remove him from office. Sad!!

WatchmanAnon

State electors won't be selected until December 8.

They don't vote for the president until December 14.

Some of you have jumped the gun. Bigly.

Congress won't count the elector's votes until January 6. Again, some of you have jumped the gun.

Seriously, read the Constitution. It's kinda important.

Aim_High

You should do stand-up, you're a funny guy!

WatchmanAnon

Again with the gender assigning?

Liberal Commandment #1: Know thy Liberal Platform.

If I notice a Prius do a drive-by in front of my house, I will know it's you. Stop trying to doxx me. I'm taken.

concern

Trump and his allies have just lost their 25th court case. This time in the PA Supreme Court. That makes them 1-25...they are losing bigly! And Michigan's largest county has unanimously certified their election results... How much longer is it going to take to admit he lost to Sleepy Joe?

WatchmanAnon

"The suspense is terrible. I hope it will last."

-Willy Wonka

KB Thomas

Review: The Great Withdrawal with Craig R Smith YouTube.

Aim_High

Georgia’s Republican secretary of state said Sen. Lindsey Graham had pressured him to find ways to throw out legal mail-in ballots that helped swing the state in President-elect Joe Biden’s favor. Throwing out legal ballots is election fraud... this means both proven cases of fraud have been committed by Trump's supporters. Sad.

Gary Lukert

While 2,600 Georgia Ballots had NOT been Counted...as they found in the Recount, only 800 were FOR TRUMP! Meaning up to 1800 were for BIDEN. Sounds to me like a Republican Poll Counting Person set them aside.

WatchmanAnon

Was your ballot counted?

Did you check?

WatchmanAnon

Here's the deal. Nobody's going to win more votes now. The voting is over.

We have two end results that are polar opposites to one another staring us in the face. One with Biden at the helm and socialism staring us in the face OR one with Trump at the helm with Americans maintaining our republic. There is no in between. Those are the two possible end results. The country is divided.

The ideologies that separate the two are night and day. But the choice of the individual is over.

It is up to the courts to decide if corruption or fraud was rampant and may be used as a means to overturn election results. It is up to the courts to decide if the voters received a free and fair election. That bread is in the oven and is already baking. There's no more adding to the dough.

We will see how it tastes when it's done.

Now the Judicial Branch will have its say. So we wait and watch.

Aim_High

I really hope you will take the time to study what the definition of "socialism" is and what it actually means... You've been misunderstanding that word for months now... Biden is against socialism, as he is a capitalist. Perhaps you can give us an example of just one of Biden's proposed policies that fits the definition of a socialist. Biden has not advocated nationalizing our production...socialism/communism are just scary sounding words the right uses as a blanket attack for Democrats. Sad.

You should also take some time to study the definition of a Republic... our President being elected by the people is what makes us a Republic. Just because you don't like the result doesn't mean we no longer have a Republic... please educate yourself.

Gary Lukert

I endorse 100 per cent what you have written!

WatchmanAnon

Thank you!

You just made my Bible Study Gun Loving Baby Saving Deplorable American Christmas Card List.

[innocent]

Gary Lukert

Well, Republicans...YOU SUPPORT NAZISM! Trump has endorsed NAZI policies! Did not like America joining the War against Hitler! Actually, Trump...who wants to be Dictator for Life, would like to have had Hitler for his Secretary of State.

Rationa1

I think Watchman is incapable of understanding "socialism," in either its economic or political meanings, Aim. They have been using the term as a synonym for "authoritarianism" almost from the time they registered here.

WatchmanAnon

No truer statement. I have no desire to "understand socialism," especially not first-hand.

Maybe it's because I know people who have emigrated from a socialist country. They tell me what life was like for them and what it is like for their families who are still there. Maybe you could expand your friend circle and learn from people from other counties and with different perspectives. No one coming from a socialist country wants to luve in one again- unless they were in the ruling class.

Aim_High

Watchman, I've included some words and their definitions below. I hope this will help you sound a little more intelligent in your future comments.

Socialism: a political and economic theory of social organization which advocates that the means of production, distribution, and exchange should be owned or regulated by the community as a whole.

Republic: a state in which supreme power is held by the people and their elected representatives, and which has an elected or nominated president rather than a monarch.

Communism: a political theory derived from Karl Marx, advocating class war and leading to a society in which all property is publicly owned and each person works and is paid according to their abilities and needs.

Capitalism :an economic and political system in which a country's trade and industry are controlled by private owners for profit, rather than by the state.

WatchmanAnon

Another old textbook dusted off in your house. Look at you! You're making progress!

sail

Agree,,,,,lets just hope ,no pray that the demos will not go crazy if and when they are caught stealing the election.

WatchmanAnon

If there is one good thing to come of this covid thing, it is that Americans have had time to become informed. Many have awakened and surveyed the political landscape for the first time. Gone are the days of the politically lukewarm voters.

Regardless of the outcome in the courts, we NEED to know if our election system has been compromised or influenced. I am glad POTUS is pressing this in the courts. So really this process- though excruciating- is valuable.

Rationa1

The Judicial Branch interprets law, Watchman. It does not "have its say," it simply interprets what has happened against existing law.

WatchmanAnon

Oh. We have a proper lawyer here.

Make way for the lawyer!

Rationa1

Read your Constitution, Watchman. It's kinda important.

WatchmanAnon

Imitation is the sincerest form of flattery.

KB Thomas

Trump just won 2020 election youtube.

Gary Lukert

Whatever is said on YOU TUBE is a Blatant Lie you Anti-American Idiots love!

KB Thomas

Review: Trump just announced he won 2020 election.......2 hours ago

Aim_High

A message for both parties:

To the Democrats, You need to stop insinuating that all Republicans are uneducated morons.

To the Republicans, Insinuating means hinting at something bad in an indirect or unpleasant way.

WatchmanAnon

To the socialist democrats: stop pandering. America will never be a socialist country.

KB Thomas

Good afternoon, this is the day the Lord has made, rejoice and be glad in it. Review offical says optimism growing that Trump Wins Arizona.

Aim_High

Remember, KB... Joe Biden is part of God's plan. Read your bible carefully and you will realize Jesus Christ was undoubtedly a liberal. It might be hard for you to understand that Jesus is a "Libtard" but he's been trying to tell you this... He even sent THE PLAGUE while Trump was in office... "you strain out a gnat but swallow a camel."

WatchmanAnon

Have you liberals been hoarding toilet paper again? Dillons stock was low on Saturday evening. Is there some reason you're stocking up on it again?

Aim_High

The MAGA crowd got to it all last week to wipe their tears.

WatchmanAnon

Most of us have made preparations for these times of strife a long time ago.

We are a herd of preppers.

So I wonder: "Are libs panicking? What would cause libs to panic if everything is rosy?"

Aim_High

Nope, ask your buddies, they're hiding it in their bunkers.

Oh noes, Review: "Lawsuits that tried to disrupt Biden's wins in four states are withdrawn"

Good thing you're a hoarder, you should be prepped to cry the next 4 years, lol.

WatchmanAnon

I guess all the love and respect for this country overflows in some communities so much that it flows in the streets. Like in Nancy Pelosi's streets. People don't worry about toilet paper in that community or others like it because, what else is a street for but raw sewage? That's why I don't see why there is a run on toilet paper. Just take care of business in the street like liberals are doing in liberal cities. It's all about transparency really. Big tech wants to know all about me, so I offer them a gift. In the middle of Commercial Street. Consider my gift an olive branch for the America that will come if socialists take over. I want to fit in among the herd of liberals. To walk among them I must act like them. And to them may I present my gift.

Gary Lukert

Well, maybe, the toilet paper got put "where it belonged!" Maybe Trump is carrying it!

Hollowed Ground

If Paragraph 3 is correct, then the original law is unconstitutional. Tell me again why military ballots are counted if they arrive 7 days after the election but non-military ballots don't count if they arrive even 1 day after. Violation of A14, plain and simple.

Gary Lukert

I HAVE ALWAYS THOUGHT, AND, YES, I AM A DEMOCRAT...BUT, MILITARY BALLOTS

SHOULD BE REQUIRED TO BE INTO THE COUNTY CLERKS OFFICES BY MIDNIGHT OF THE ELECTION DAY.

KB Thomas

Review: Release the Kraken Lou Dobbs video.

Gary Lukert

LOU DOBBS IS A PROVEN LIAR, BUT, YOU AND YOUR REPUBLICAN CROOKED LIARS LOVE HIM. LOU DOBBS IS LESS THAN NOTHING!

KB Thomas

Good morning, this is the day that the Lord has made, rejoice and be glad in it. Review: 7 facts about the Trump Re-Election 'False' Prophecies.

Gary Lukert

Prophesies were RIGHT ON WITH PEOPLE VOTING AGAINST TRUMP BY MORE THAN 5 1/2 MILLION VOTES! ALSO, BIDE HAS MORE ELECTORAL VOTES THAN TRUMP GOT 4 YEARS AGO, WHEN TRUMP CALLED IT A LANDSLIDE. AND SAID AT ONE TIME.... MORE THAN ANY PRESIDENT EVE GOT! WHAT A LIAR...AND YOU LIKE AND SUPPORT HIM SAYS MORE ABOUT YOU THAN IT DOES TRUMP!

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