The U.S. Supreme Court has not yet agreed to accept the Pennsylvania voting case or to maintain Judge Alito’s stay order

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By Robert Willmann

A conference of the Supreme Court judges took place on Friday, 13 November, during which they discussed pending matters.  Possibly on the list was the request asking them to agree to hear the Pennsylvania voting case and to confirm Judge Samuel Alito's stay order directed at ballots received after election day in that state.  The court often issues orders on a Monday, and so the results of their discussion may be known soon.

Pennsylvania Attorney General Josh Shapiro and Secretary of State Kathy Boockvar thought they would be cute and snooker the U.S. Supreme Court into not issuing an order to segregate and secure ballots that came in after the 8:00 p.m. deadline on election day, which had been (unconstitutionally) extended by the Pennsylvania Supreme Court to Friday, 6 November, three days after the election.  Two applications were made to the U.S Supreme Court for a "stay order" on 28 September 2020 to block the extended deadline. The court denied them on 19 October, with the notation that Judges Thomas, Alito, Gorsuch, and Kavanaugh would have granted the stay.  On 23 October, the Republican Party of Pennsylvania filed a request asking the court to agree to hear the case, plus a motion to speed up the usual time frame for that process.  The motion asking for a faster time period was denied on 28 October, and included a "statement" by Judges Thomas, Alito, and Gorsuch which said, in part [1]–

"… we have been informed by the Pennsylvania Attorney General that the Secretary of the Commonwealth issued guidance today directing county boards of elections to segregate ballots received between 8:00 p.m. on November 3, 2020, and 5:00 p.m. on November 6, 2020.  Nothing in the Court’s order today precludes Petitioner from applying to this Court for relief if, for some reason, it is not satisfied with the Secretary’s guidance".

Four days later, Pennsylvania Secretary of State Boockvar put out a "guidance" about canvassing segregated mail-in and civilian absentee ballots received by mail after the deadline.  That document, and the inability to find out if all of Pennsylvania's election boards were following the earlier "guidance" of 28 October, caused the Pennsylvania Republican Party to file a request in the U.S. Supreme Court for an injunction order on 6 November.  Two days earlier, on 4 November, the Donald Trump campaign had filed a request to intervene in the pending matters [2]. 

The application for an injunction was submitted to Judge Alito.  He is the designated judge for the Third and Fifth Circuits to whom certain types of requests can be presented.  For federal courts of appeals, the U.S. is divided into "circuits", and those geographical areas include smaller areas called federal "districts", for the federal district courts (the trial courts).  A Supreme Court judge is assigned to each circuit [3]. 

Judge Alito granted a stay order, which turned some of the "guidance" of the Pennsylvania Secretary of State into a formal order, and in the last three sentences he pointedly recognized that the state and counties tried to pull a fast one–

"Nov 06 2020 Order issued by Justice Alito: All county boards of election are hereby ordered, pending further order of the Court, to comply with the following guidance provided by the Secretary of the Commonwealth on October 28 and November 1, namely, (1) that all ballots received by mail after 8:00 p.m. on November 3 be segregated and kept “in a secure, safe and sealed container separate from other voted ballots,” and (2) that all such ballots, if counted, be counted separately. Pa. Dep’t of State, Pennsylvania Guidance for Mail-in and Absentee Ballots Received From the United States Postal Service After 8:00 p.m. on Tuesday, November 3, 2020 (Oct. 28, 2020); Pa. Dep’t of State, Canvassing Segregated Mail-in and Civilian Absentee Ballots Received by Mail After 8:00 p.m. on Tuesday, November 3, 2020 and Before 5:00 p.m. on Friday, November 6, 2020 (Nov. 1, 2020). Until today, this Court was not informed that the guidance issued on October 28, which had an important bearing on the question whether to order special treatment of the ballots in question, had been modified. The application received today also informs the Court that neither the applicant nor the Secretary has been able to verify that all boards are complying with the Secretary’s guidance, which, it is alleged, is not legally binding on them. I am immediately referring this application to the Conference and direct that any response be filed as soon as possible but in any event no later than 2 p.m. tomorrow, November 7, 2020".

Judge Alito's stay order and his immediate referral of the application for an injunction to the entire court galvanized the Pennsylvania Democratic Party into action, which had been just slipstreaming the case after the Pennsylvania Supreme Court ruled in its favor on 17 September and changed the deadline.  At that point Pennsylvania and its Secretary of State would be involved in the election along with local election boards.  However, the Pennsylvania Democratic Party is still technically a party and got its opposition to an injunction filed the same day as Alito's order, 6 November.  Secretary of State Boockvar and the Luzerne County Board of Elections, another party, filed their objections to an injunction on Saturday, 7 November. 

Pennsylvania Attorney General Josh Shapiro could not leave well enough alone, and on Sunday, 8 November, his office filed a letter similar its 28 October one, again trying to sucker the Supreme Court into not issuing a formal order.  The letter said that by 8 November all the Pennsylvania counties had "confirmed" their "intention" to follow the "guidance" [4].

The big problem is that Boockvar's guidance is not binding on the counties, as the Pennsylvania Republican Party pointed out in its request for an injunction, and the instructions can be changed at any time, and they were [5].  The 28 October guidance said that the counties "shall not pre-canvass or canvass any mail-in or civilian absentee ballots … until further direction is received".  But the 1 November document said that the counties "shall canvass segregated absentee and mail-in ballots received" after election day [6]. 

Seventeen states filed "friend of the court" briefs supporting the request asking the Supreme Court to hear the case.  Oklahoma, Indiana, Kansas, Nebraska, Tennessee, and West Virginia filed a brief together.  Missouri, Alabama, Arkansas, Florida, Kentucky, Louisiana, Mississippi, South Carolina, South Dakota, and Texas went in on one brief.  Ohio filed a brief by itself. 

The issue being presented is that the Pennsylvania Supreme Court illegally rewrote the election law passed by the Pennsylvania legislature by extending the deadline that ballots could be received, from a deadline on election day to three days after election day.  However, problems such as voting fraud, ineligible voters, sloppy counting, and procedures that are too weak or worthless to determine whether a vote is valid are not issues in this particular case. 

Nevertheless, it is important that the Supreme Court agree to hear the matter and issue an injunction against ballots received after election day in Pennsylvania.  Accepting the case for review will be a can opener to get at least one election issue before the court.  Then, as more critical issues, such as voting fraud, are procedurally at a point to knock on the door and seek a hearing, the court may be more apt to agree to get involved, and perhaps other cases could be consolidated with this one for consideration and decision, depending on issues and facts.  In addition, the Supreme Court can show that it will not tolerate cheesy attempts by a litigant to fool it through dodgy language and the omission of relevant facts.  The assertion by the Pennsylvania Attorney General and Secretary of State that the county election boards "intend" to follow their "guidance", which is not binding on the counties, and so an injunction and court review are not needed, is what is called bulls**t.

Chief Judge John Roberts has indicated that he is not inclined to get involved when state election laws are changed by state actors who are not the legislature [7].  If he persists with that position, Judge Amy Coney Barrett will probably have to step up and provide a fifth vote to issue an injunction against some Pennsylvania ballots received after election day.

[1]  The statement when the court declined to speed up its timetable.

https://turcopolier.typepad.com/files/repub_party_penn_v_boockvar_20-542_20201028.pdf

[2]  https://turcopolier.typepad.com/sic_semper_tyrannis/2020/11/trump-campaign-files-to-intervene-in-the-pending-request-to-the-supreme-court-about-pennsylvania-voting.html

[3]  Supreme Court judges assigned to the federal circuits and a map of the circuits.  You have to scroll down the webpage a little to see the information.

https://www.supremecourt.gov/about/circuitassignments.aspx

[4]  Letter filed in the Supreme Court on 8 November 2020 by the Pennsylvania Attorney General that the county election boards intended to follow the "guidance".

https://turcopolier.typepad.com/files/penn_case_state_ag_letter_20201108.pdf

[5]  Two pages from the application for an injunction filed in the Supreme Court by the Pennsylvania Republican Party.

https://turcopolier.typepad.com/files/penn_case_app_injunction_pp_4-5_20201106.pdf

[6] The non-binding "guidance" from the Pennsylvania Secretary of State from 28 October and 1 November 2020.

https://turcopolier.typepad.com/files/penn_case_state_instruct_boards_20201028.pdf

https://turcopolier.typepad.com/files/penn_case_state_instruct_boards_20201101.pdf

[7]  The ruling that the deadline to receive ballots in Wisconsin will not be extended, which includes a concurring opinion by Chief Judge John Roberts.

https://turcopolier.typepad.com/files/dnc_v_wisconsin_legislature_20a66_20201026.pdf

 

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20 Responses to The U.S. Supreme Court has not yet agreed to accept the Pennsylvania voting case or to maintain Judge Alito’s stay order

  1. Avatar Deap says:

    Since the US Constitution expressly sets out citizen voting procedures, it is inherent this fundamental right is not diluted or compromised. Every illegal vote either cancels or amplifies a valid legal vote.
    Illegal votes are so fundamentally unconstitutional, every possible protection against illegal voting must be rigorously instituted and maintained so as to not deny the rights of legal voters who alone determine the direction of this country..
    Any voting process that cannot independently guarantee only legal votes are cast and counted, must be declared unconstitutional ab initio.

  2. Avatar Leith says:

    SCOTUS will not accept the Pennsylvania voting case.
    The point is moot. Even IF SCOTUS took the case and ruled out the 10,000 “late” ballots Biden is ahead in PA by 50,000+ votes. So Biden would still win PA.
    Trump is down by five touchdowns with five seconds on the clock and he is arguing over whether a field goal is valid.

  3. Avatar Deap says:

    The express right to vote established by our US Constitution requires strict construction, when when laws attempt to modify, curtail or expand this right.
    The burden of proof transfers to those proposing the modification, They must prove any changes do not jeopardize our fundamental right to a fair, honest and verifiably accurate election. There is no other description of our fundamental right to vote – secret ballots when cast but transparency when collecting, validating and counting them.
    Just claiming voting procedure chanes “sounds like a good idea to expand voter participation” does not pass the strict scrutiny review required when abrogating a fundamental constitutional right – the right to a verfiable fair and honest election.
    Today’s “computer” ballot verification and vote counting procedures does not even close to passing strict scrutiny muster. This voting process is fraught with error and even worse provides zero independent authentication. Democracy dies in darkness — I believe others have claimed to have said.
    Vote by mail inherently opens up the risk of corruption; but the abject failure to be able to verify and count these mailed-in ballots today is an utter corruption of our fundamental constitutional right to honest and fair elections. No right could be more sacred to our exceptional form of government – of the people, by the people and for the people.
    We are not a government of surreptitiously altered lines of code or 40% accurate signature verification standards. Gold standard – in person voting on election day and preservation of ballots for verification. Tinker with that standard only if you can prove upfront alternatives shall not corrupt this gold standard.
    2020 election failed to meet this necessary burden of proof. Any single illegal ballot cast may have de facto taken away YOUR legal right to vote.

  4. Avatar Laura Wilson says:

    Leith, great analogy!

  5. Avatar TV says:

    SCOTUS is just another corner of the swamp. Sure,there a couple of “good guys” – Thomas, Alito – but hoping that the court has any interest in upholding the Constitution is like waiting for Santa Claus Christmas morning – which will probably not come this year, thanks to Fauci and the other so-called “scientists.”

  6. Avatar Deap says:

    Democrats are a month away from a legally sanctioned victory, one way or the other, that is only decided by the electoral college, but they are running around with their legs crossed and peeing in their pants. Why is that?
    Democrats come across as both scared and scary. A twofer. There is no rush – just a constitutional process they alone want to circumvent with theater and posturing.
    Democrats are calling the game at the end of the third quarter and closing down the replay cameras. Very unsportsman like. But then they never did learn to play well with others. Be best, Democrats.

  7. Avatar Deap says:

    Lieth and Laura are trying to gas-light you. Not working. Too easy to spot their agenda. Probably Tommy Vietor with a new screen name, who used to haunt NoQuarter.

  8. Avatar Fred says:

    Deap,
    “Since the US Constitution expressly sets out citizen voting procedures,…”
    Why don’t you actually read it so you’ll know what you are talking about instead of sending out more balderdash.

  9. Avatar Bukeyelad says:

    Leith, Barbara Ann,
    Perhaps a better analogy is that of a Lance Armstrong, having been found to have doped (Smartmatic, Dominion), being stripped of his titles.

  10. Avatar Chuck Light says:

    Just curious, Deap, regarding your assertion that “The express right to vote established by our US Constitution requires strict construction, when when laws attempt to modify, curtail or expand this right.”
    I was wondering which “express right to vote” you are referring to. I know I must be wrong, because I can only find two. The first, in Section 1, Cl. 4, provides:
    The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations.
    As I read this provision, each state, absent action by Congress to “alter such regulations,” is solely in charge of establishing the “times, places, and manner of holding elections.” So if a state, California, for instance, established mail-in voting as the sole method of casting a ballot, that would be legal, subject to Congress passing a law countermanding the law of California. Am I wrong about that?
    The second reference I could find is in the Fifteenth Amendment:
    The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
    This provision appears to prevent either Congress or any State of acting in any way to limit or deny the right to vote for enumerated reasons. I believe, subject to correction, of course, that this provision has been expanded to include categories of citizens based on national origin, or gender (19th Amendment).
    Is there some other “express right to vote established by our US Constitution” that I am missing? Or are you to referring to legal rights, extablished by statute, as opposed to rights established in the body of the Constitution?

  11. Avatar Leith says:

    Laura Wilson –
    I can’t claim credit for that analogy. I should have put quotation marks on it. My bad. The original came from Pennsylvania’s Lieutenant Governor John Fetterman.
    Check out Fetterman’s twitter account. He is trying to claim the million dollar award put up by Texas Lt Gov Patrick for anyone proving voter fraud. Fetterman cited two cases of voter fraud in Pennsylvania. One was trying to vote twice, once for himself and then again for his son. The other by someone voting for his dead mother. But Patrick is studiously ignoring him. Will he welsh out on his offer?

  12. Avatar Deap says:

    Chuck, Lieth, Fred, Laura,
    Time, place and manner are procedural. No state can interfere with the constitutional right to a honest, fair and accurate election and vote count.
    How a state provides that fundamental right is reserved to the state, but no state can take away the “right to vote” – which is the most basic underpinning of the entire US Constitution. Allowing illegal votes to be counted takes away the principle of “one person, one vote”.
    This is an inherent corruption of the constitution. Burden of proof is on the state to prove they did not corrupt this right with their chosen “time, place and manner” of voting, counting and cerfitying that states vote.
    Try this example – right to free speech cannot be taken away, but it can be legally mitigated by “time, place and manner”. But never the content. You can yell fire (content) but “time, place and manner” prevents you from yelling fire in a crowded theater.
    Thanks for letting me know I pushed your hot buttons – strict construction applied to anyone or any agency who attempts to take away the fundamental right to fair, honest and accurate elections.
    The right to vote – aka – fair and honest elections – are there any other kinds? Is far more express in the US Constitution than the “right to privacy” that allows killing unborn human beings. So what point are you still trying to make? Rights endowed by our Creator I suspect is an alien concept for you.

  13. Avatar Deap says:

    Chuck, Lieth, Fred, Laura,
    Time, place and manner are procedural. No state can interfere with the constitutional right to a honest, fair and accurate election and vote count.
    How a state provides that fundamental right is reserved to the state, but no state can take away the “right to vote” – which is the most basic underpinning of the entire US Constitution. Allowing illegal votes to be counted takes away the principle of “one person, one vote”.
    This is an inherent corruption of the constitution. Burden of proof is on the state to prove they did not corrupt this right with their chosen “time, place and manner” of voting, counting and cerfitying that states vote.
    Try this example – right to free speech cannot be taken away, but it can be legally mitigated by “time, place and manner”. But never the content. You can yell fire (content) but “time, place and manner” prevents you from yelling fire in a crowded theater.
    Thanks for letting me know I pushed your hot buttons – strict construction applied to anyone or any agency who attempts to take away the fundamental right to fair, honest and accurate elections.
    The right to vote – aka – fair and honest elections – are there any other kinds? Is far more express in the US Constitution than the “right to privacy” that allows killing unborn human beings. So what point are you still trying to make? Rights endowed by our Creator I suspect is an alien concept for you.

  14. Avatar lux says:

    Sorry, not sure if that worked. Meaning if double just delete.
    and in the last three sentences he pointedly recognized that the state and counties tried to pull a fast one–
    My core question would be: WHY? Just to spite the President and the Republicans?
    Patrick Armstrong referred to anecdotes elsewhere (Algorithms, Computers and Elections.). Well I heard one which fits into the Pennsylvania context: A female student traveled quite a distance to vote in person after noticing her mail-in ballot hadn’t arrived yet. I would assume not every student can afford that. Just as one or the other out of his state on urgent business. …
    ____________________________________
    Posted by: Chuck Light | 15 November 2020 at 06:53 PM
    https://reason.com/2020/11/10/trumps-new-lawsuit-looks-like-an-attempt-to-cancel-all-mail-in-votes-in-pennsylvania/
    The lawsuit, filed Monday in the U.S. District Court for the Middle District of Pennsylvania, argues that ” Pennsylvania has created an illegal two-tiered voting system” that runs afoul of the Equal Protection Clause of the U.S. Constitution by applying different standards to in-person voting and mail-in voting. Voters who appeared at the polls, the lawsuit argues, had their signatures verified in polling places monitored by poll-watchers who ensured votes were “counted in a transparent and verifiable, open, and observed manner.”
    Maybe the unwanted increase in voter turnout is the real issue? Which it feels could happen, if you allow people to vote by mail.
    ____________________________________
    It would be interesting to see the amount of evidence surrounding voter fraud, ideally as statistics across the US. Mail-in would stick out as statistically relevant? In some places, in some districts, with Republicans in place versus Democrats? What about Pennsylvania?
    And yes, there have been a lot of rumors around electronic voting security for decades. Not sure what Eric (same thread), maybe I misunderstood, meant when he wrote, not verbatim: Software always does what it should? Put another way glitches (software troubles) are mainly caused by human interference with the software’s perfect job? … My anecdotal experience suggest otherwise. Although yes, often the human factor statistically matters a lot.

  15. Avatar Fred says:

    Deap,
    “but no state can take away the “right to vote” – which is the most basic underpinning of the entire US Constitution”
    You’re full of it today. There are plenty of men and women in prison with no right to vote, there are plenty of people legally declared incompetant who have no right to vote either; nor is there inumerated in the Constition just what a ‘right to vote’ is. Feel free to quote the text of the Constitution to prove me wrong.

  16. Avatar Dominigan says:

    Deap,
    “The best lies carry an element of truth.” What you conveniently leave out is that the US Constitution authorizes the state LEGISLATURE for establishing the method of voting. State courts and governors have no say, only the legislatures do. And in this case, a court ILLEGALLY changed state law, created by state legislatures, that put a time limit of 8pm for receiving mail-in ballots, AND the law specifically had a statement preventing severability and modification. US Constitution, Article I Section 4 Clause 1: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof”.
    In PA, votes were counted illegally after 8pm, using an illegal/un-Constitutional backing from a corrupt set of judges.

  17. Avatar lux says:

    In PA, votes were counted illegally after 8pm, using an illegal/un-Constitutional backing from a corrupt set of judges.
    Posted by: Dominigan | 16 November 2020 at 12:09 PM

    evidence? Corrupt judges?
    Not every district followed state regulations? Where exactly? Or is there evidence out there of separated post 8pm arrived ballots that were not as should have happened separated?
    Did the respective responsible US/state authority put routines in place to counter that charge especially, if not what then? Anecdotes? Any routines to differentiate ballots arrived on time from ballots arrived late? The software has had that automatic option? How? Clairvoyant programmers?
    tell me what important issue I miss.

  18. Avatar Chuck Light says:

    Lux has attributed to me a post, dated 15 November 2020, that I had nothing to do with. I would appreciate it if this thread of comments could be corrected, or at least annotated that I did not make the post on 15 November 2020 (appearing above immediately prior to Fred’s post dated 16 November 2020 at 10:22 AM) which Lux has attributed to me.
    Thank you.

  19. Avatar lux says:

    Posted by: Chuck Light | 16 November 2020 at 01:55 PM.
    ____________________________________
    Sorry Chuck Light, if either I referred to a post you had nothing to do with. This one:
    Posted by: Chuck Light | 15 November 2020 at 06:53 PM
    or you feel I misused your comment in any way.
    ____________________________________
    Fact is: My post, as the initial quote shows, was addressed to Robert Willmann, since I am not a lawyer I found your reference to the constitution helpful.
    I am not a lawyer, but it feels you may partly have been in search of help from the constitution, me too. Sorry if I misread whatever was your intention.

  20. Avatar English Outsider says:

    Mr Willmann – thank you very much for that lucid explanation of this corner of the legal dispute surrounding the election.
    It was due to my slowness, not to any lack of lucidity, that I had to read it several times to get the drift. The method used to try and pull a fast one over the US Supreme Court.
    That aside, I hope in due course you’ll be able to tell us how this is coming along – ” Then, as more critical issues, such as voting fraud, are procedurally at a point to knock on the door and seek a hearing, the court may be more apt to agree to get involved, and perhaps other cases could be consolidated with this one for consideration and decision, depending on issues and facts.

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