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The Constitution’s Election Clause Should Apply to 2020 Vote Count

For a few days last week, it looked as if the 2020 election might play out as a gloomy opera of recounts and lawsuits, possibly upstaging Florida in 2000. We can thank the fates for sparing us, since nobody else can claim credit. The task ahead, starting in the Supreme Court, is to prevent a similar shadow from falling next time.

Joe Biden’s lead in Pennsylvania has plodded upward to about 49,000 votes, at last check. That’s a modest margin of 0.73 percentage point, but it’s enough to avoid a recount cataclysm. The potential, though, was there. Pennsylvania law says absentee votes must be returned by 8 p.m. on Election Day. Two months ago, the state’s highest court nonetheless yelled abracadabra and changed the deadline to Nov. 6, while making postmarks optional.

Those straggling ballots remain subject to litigation, and Justice Samuel Alito has ordered local officials to keep them separate. The precise number of late votes hasn’t been released, but a state official said Tuesday that it’s “approximately 10,000.” If Mr. Biden were winning by 537 votes, which was George W. Bush’s final margin in Florida, all hell would break loose. The Court’s decision to invalidate the ballots, or to count them, might well pick the next President.

Now the temptation for the Justices, since Mr. Biden appears to have won Pennsylvania and the White House, will be to call this case moot and walk away from the controversy. That would be a missed opportunity.

First, it matters for posterity whether Mr. Biden won the state by 49,000 or something closer to 43,000, or whatever. Settling the issue would remove one of Donald Trump’s claims of electoral shenanigans. Most important, however, is straightening out all the lower judges who see the Constitution’s elections clauses as useless inkblots.

In recent cases, state and federal courts across the country ignored black-letter election law. With Nov. 3 looming, judges extended the statutory ballot deadlines by three days in Georgiasix in Wisconsin and 14 in Michigan. Those orders were halted on appeal. After Minnesota progressives sued, a Democratic official agreed to bump the ballot deadline by a week, state law be damned. An appeals court responded, five days before the election, by ordering that Minnesota’s late ballots be kept separate, leaving a second batch of votes in limbo.

The Supreme Court has already yanked the reins on the federal judiciary. Last month it restored South Carolina’s witness requirement for absentee ballots, which a federal judge had suspended. Justice Brett Kavanaugh’s opinion there was cited days later, when an appeals court halted the Wisconsin deadline extension.

It’s trickier, in a federalist system, to correct state judges on a question of state law. But Pennsylvania’s Supreme Court doesn’t have free rein, especially given how far it strayed. The U.S. Constitution vests state legislatures with authority over elections, and Pennsylvania lawmakers set an unequivocal ballot deadline.

Where did the state judges find the power to overrule it? They gestured at a provision of the state constitution, which vaguely says that elections “shall be free and equal.”

Liberals say it would be a watershed for the Justices to overrule a state court’s interpretation of an election code in this way. But intervening here would not obligate the Supreme Court to wade into state election disputes that involve genuine ambiguity. It would merely put state judges on notice that they can’t outright stomp on clear election rules that were duly passed by legislatures accountable to the people.

Uncertainty is unavoidable when running an election during a pandemic. Yet rewriting the rules at the last minute made this election a much riskier proposition than it needed to be. Candidates and voters went into Nov. 3 knowing that the ballot requirements in Pennsylvania and other states might be changed after the fact. If it had rained in Philadelphia last week, making Mr. Biden’s turnout soggy, the country might be on the brink of a Bush v. Gore redux over those thousands of late ballots, with an outcome that half the country would call illegitimate.

This is no way to run an election for junior-high student council, much less the world’s oldest functioning democracy. A Supreme Court decision in the Pennsylvania case might not determine the outcome in this election. But the country deserves better in the years to come than a repeat of 2020’s last-minute, arbitrary rule changes. The Justices can help by making the Constitution’s commands clear to judges and politicians.


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