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AG Derek Schmidt: U.S. Supreme Court should settle role of state courts in modifying otherwise-clear election statutes

Release Date: Nov 09, 2020

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. Supreme Court.

“[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.

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