TOPEKA – (November 9, 2020) – The
Pennsylvania Supreme Court violated the federal Constitution when it claimed
authority to extend the deadline for ballots to be received by election
officials despite a state statute that plainly requires ballots to be returned
by Election Day, Kansas Attorney General Derek Schmidt today told the U.S.
“[M]any courts, both before and
during the pandemic, have upheld Election Day receipt deadlines—and COVID-19
does not make these laws unconstitutional,” Schmidt wrote in a legal brief
asking the U.S. Supreme Court to review the Pennsylvania court’s ruling.
“Regardless of the virus and the policy choice of how election laws should be
changed due to recent circumstances, balancing interests in counting as many
tardy voters as possible with electoral order, legitimacy, efficiency, and
certainty is quintessentially a legislative judgment. The decision of
the court below to strike a different balance, writing in a new postmark
deadline with an arbitrary three-day-after-Election-Day cutoff, improperly
abrogated the state legislature’s prerogative to set ‘the Times, Places and
Manner of holding Elections.’”
Schmidt today joined with the
attorneys general of Oklahoma and other states in asking the high court to
review the Pennsylvania decision and give “clear direction to courts in every
state – for this election and future ones – that the Constitution’s election
clauses do not countenance judicial alteration of election laws based on little
more than inherently-legislative policy judgments.”
Today’s filing is the latest in a
series of legal efforts Schmidt has joined – both before Election Day and now
after – challenging the authority of courts to essentially rewrite election
laws by judicial order. At issue in this case is the U.S. Constitution’s provision
that the “Legislature” of each state determine the times of elections,
including deadlines for returning ballots, and state courts may not substitute
their judgment for that of the state Legislature. Kansas law allows the
counting of ballots postmarked by Election Day but received up to three days
later, but unlike in Pennsylvania the Kansas law was duly enacted by the Legislature,
not ordered by state courts despite a statute to the contrary.
Schmidt said the constitutional
question about the role of state courts in modifying otherwise-clear state election
statutes should be decided now by the U.S. Supreme Court regardless of whether
it affects any outcome in the current election.
“The critical importance of that
question extends well beyond the current election, and I think it should be
settled by the U.S. Supreme Court before other state courts in the future are
tempted to follow what I think is the mistaken lead of the Pennsylvania Supreme
Court,” Schmidt said.
A copy of Schmidt’s brief is
available at https://bit.ly/3ka0Ozq.