“As described [in this petition], non-legislative officials, oftentimes at the instigation of partisan third parties, ignored or significantly altered and thereby violated state election law, including, most troublingly, laws enacted to minimize the risk of fraud in mail voting and thereby protect the integrity of the election process. The decisions of the Pennsylvania Supreme Court, an elected body, also raised serious concerns whether these were partisan attempts to assist the Democratic candidate whose campaign strategy of utilizing mail ballots was well publicized, in comparison to President’s Trump’s well-known strategy to encourage in-person voting.”
On December 20, President Trump petitioned the U.S. Supreme Court to review a series of decisions from the Pennsylvania Supreme Court that resulted in the counting of approximately 2.6 million mail-in votes in violation of Pennsylvania law. Given that President Trump lost Pennsylvania’s 20 electoral votes as a result of these violations, he has standing to bring this case. The petition presents three questions:
- Whether the Pennsylvania Supreme Court’s alteration of suspension of state election law through its three decisions before and after the November 2020 general election usurped the Pennsylvania Legislature’s plenary authority to “direct [the] Manner” for appointing electors for President and Vice-President, in violation of Article II, Section 1, Clause 2 of the U.S. Constitution?
Whether the Pennsylvania Supreme Court’s three decisions usurping the Pennsylvania Legislature’s plenary authority to “direct [the] Manner” for appointing presidential electors, by changing the law, including eviscerating protections against mail ballot fraud, violated the Due Process Clause of the Constitution, and whether Pennsylvania applying the new rules promulgated by the Court during the election in only select counties where mail ballots heavily favored one candidate over the other violated the Equal Protection Clause of the Constitution?
Whether this Court has the power to provide a meaningful remedy to Petitioner in advance of the January 6, 2021 Joint Session of Congress, at which electoral votes will be opened and counted, or before the January 20, 2021 inauguration date specified by the Constitution?
The petition provides a detailed review of actions by Secretary of State Boockvar and the Pennsylvania Supreme Court that boldly violated the Pennsylvania Legislature’s clear and unambiguous laws to protect voter integrity and ensure that only legal votes would be counted. This all took place within one year of the Pennsylvania Legislature establishing the opportunity for people to vote by mail with no excuse, a move that was certain to increase the number of absentee ballots that would need to be processed and validated before being counted.
The petition focuses on three decisions that show the gradual breakdown in election security through significant departures from prior case law and unambiguous statutory mandates adopted by the state Legislature.
November 3, 2020 Gen. Election
In August 2020, the League of Women Voters sued Secretary Boockvar for failing to create a plan for providing notice and an opportunity to cure mail votes that were disqualified because the signatures didn’t match the registration signature. In response, Boockvar informed county registrars that they were not permitted to reject mail ballots when the signature on the ballot did not match the registration signature. Recognizing that this instruction contravened long-standing signature verification practices, she successfully asked the Pennsylvania Supreme Court to ratify her decision right before the general election. Leaders in the Pennsylvania Legislature were outraged by the action and further diminished when the court denied their motion to intervene in the case. Taking it a step further, the court decided, on its own, that there would be no right to challenge the authenticity of these defective ballots, despite state law stating the opposite. Making matters worse, this decision created inequities for voters depending on their choice of voting – mail-in ballots with signature verification failures would be counted, but in-person ballots with the same defect would be invalidated.
In this second of three cases that dismantled Pennsylvania’s election safeguards, the Pennsylvania Supreme Court overruled the more reasoned lower Commonwealth Court’s ruling and decided that the requirements of state law mandating representatives of each political party be allowed to be present and in the room during the canvassing process did not actually require “meaningful access.” The Justices held that “mere presence at one end of a ‘room’ as large as the Philadelphia Convention Center was sufficient,” even though this meant that statutorily authorized poll watchers would stand as far 100 feet away from some of the canvassing tables, clearly unable to see anything the poll workers were doing.
Canvass of Absentee and Mail-in Ballots
The final case of this series is possibly the most outrageous in that the Pennsylvania Supreme Court appears to have seriously twisted the text in its interpretation of a long-standing statute that had been previously followed without issue. Pennsylvania law requires that after a voter completes a mail-in ballot, he or she “shall then fill out, date, and sign” the declaration on the outer envelope to ensure the ballot is legitimate. The Pennsylvania Supreme Court made two strange determinations:
- The phrase “fill out” was ambiguous and did not apply to the address requirement, despite the obvious fact that an address was required in order that election officials could determine whether the voter still resides at the same address to which the absentee ballot was issued, and
- The phrase “shall … date” the declaration was not mandatory because it “served no purpose.” The date requirement was more important in this election than ever before due to a separate bizarre case that extended the receive-by date for mail ballots for three days post-election, and that ballots without a postmark would be presumed to have been mailed before the close of the election.
In other words, a mail ballot with a defective signature and an incomplete declaration could be processed, but only in the heavily-Democrat Allegheny and Philadelphia counties that ignored the statutory guidelines, counted faulty ballots, and got a pass from the Pennsylvania Supreme Court in its post-election contortion of statutory language.
With the abandonment of safeguards and the obstruction of poll watchers, the percent of ballots disallowed across Pennsylvania dropped sharply from 4.5% in 2018 to 0.28% in 2020. The drop was even more dramatic in Democrat strongholds.
Important judicial guidelines about state law interpretation were established by the U.S. Supreme Court during the Bush-Gore election dispute in 2000:
“In most cases, comity and respect for federalism compel us to defer to the decisions of state courts on issues of state law.” Bush v. Gore [Bush II], 531 U.S. at 113 (Rehnquist, C.J., concurring), at 112. “But in the case of a law enacted by a state legislature applicable … to the election of Presidential electors, the legislature is not acting solely under the authority given it by the people of the State, but by virtue of a direct grant of authority made under Art. II, § 1, cl. 2, of the United States Constitution.” Bush v. Palm Beach County Canvassing Bd., 531 U.S. 76 (2000) (“Bush I”). As Chief Justice Rehnquist noted, selecting the manner of choosing presidential electors is an “exceptional cas[e] in which the Constitution imposes a duty or confers a power on a particular branch of a State’s government,” namely, the Legislature of the State. Bush II, 531 U.S. at 113 (Rehnquist, C.J., concurring). In such a case, “the text of the election law itself, and not just its interpretation by the courts of the States, takes on independent significance.” Id.
Based on precedent, the incomprehensible actions of the Secretary of State and Pennsylvania Supreme Court, the variety of constitutional issues raised, the number of votes in contention, and the legitimate risk that this presidential election was incorrectly decided, President Trump has turned to the U.S. Supreme Court. He asks the Court to reaffirm its prior holdings that only the state legislature is authorized to affect election law and to provide redress for the illegal and unconstitutional actions caused by Pennsylvania that adversely impact the outcome.
President Trump also submitted a separate motion for expedited consideration since Inauguration Day is January 20, 2021. On December 23, the Court docketed this appeal and set the deadline for Pennsylvania to respond as January 22. Respondent Boockvar filed an opposition to this motion, claiming that too much time had passed since the election to claim urgency at this late date. Her petition relied on circular reasoning to reiterate that the election was over and Joe Biden had been certified four weeks earlier, so there was no dispute over the votes, and the results were final. Secretary Boockvar conveniently relied on federal statutes to enforce Congress’ authority to count the electoral votes while simultaneously ignoring state statutes regarding the administration of an election. Despite President Trump’s reply to this motion, underscoring that Secretary Boockvar was merely assuming what was actually in dispute, the U.S. Supreme Court denied the motion to expedite.
On December 30, the Republican Party of Pennsylvania filed an amicus brief in support of President Trump, arguing that the Pennsylvania Supreme Court had rewritten so much the state election law that it was almost unrecognizable. Specifically, that Court “eliminated crucial security requirements for mail-in ballots” in a year when they were being received in record numbers. President Trump received an unreasonably low 23% of the mail-in vote when the overall results gave him a losing margin of only 1.2% (80,558 vote differential). Consequently, the certified results in Pennsylvania were not secure. Additionally, Todd C. Bank, filed an amicus brief, stating, as he did in Trump v. Biden, that the U.S. Supreme Court should review the underlying facts with an independent approach, rather than the traditional deferential approach.