In PA case, SCOTUS's far-right trio signals an openness to a power grab

Rejecting an RNC request on Friday, Justice Sam Alito nonetheless issued a warning about a Pennsylvania Supreme Court decision involving provisional ballots.

On Friday evening, the U.S. Supreme Court did the right thing in rejecting a long-shot election-related request out of Pennsylvania from the Republican National Committee. But, there was a warning — from Justice Sam Alito, naturally — that the matter was not settled and another case raising the issue could come back to the justices out of the general election.

Given the key role that the Keystone State could play in deciding the winner of this year’s presidential election, the warning could quickly become a central pivot point in the 2024 election.

So, what’s going on?

The Pennsylvania Supreme Court decided on October 23 that — under state law — voters whose mail ballots were rejected for failing to meet certain mandatory ballot requirements could vote provisionally if otherwise qualified to vote. Three of the court’s seven justices dissented.

Although it was a decision about Pennsylvania law, the Republican National Committee went to the U.S. Supreme Court, asking for a stay of the state court’s ruling or, in the alternative, an order that ballots cast under those conditions be segregated “to preserve the possibility of judicial review.” The two voters who initially brought the challenge to have their provisional votes in the Democratic primary election counted and the Pennsylvania Democratic Party both opposed the RNC’s request.

As the voters explained in their opposition, “On the eve of a major election, Applicants (collectively, ‘RNC’ or ‘Applicants’), ask this Court to step in to reverse the Pennsylvania Supreme Court’s resolution of a question purely of state law over which this Court ordinarily would have no jurisdiction.”

The RNC, however, claimed that the state court’s reasoning was “untenable” and “an egregious usurpation of the General Assembly’s constitutional authority to set rules for federal elections.”

On Friday evening, the U.S. Supreme Court denied the RNC’s request, with no justice voicing support for the RNC’s application. That is certainly a good sign for the Pennsylvania Supreme Court — and for Pennsylvania voters who want to be able to cast a valid provisional vote if their mail ballot was rejected.

And yet, Alito, who is a problem, wrote what amounted to a two-page warning memo. In this statement “respecting the denial” of the RNC’s request, he was joined by Justices Clarence Thomas and Neil Gorsuch.

Although voting against the RNC’s request on Friday, Alito nonetheless wrote — in the first sentence of his statement for the trio — that the Pennsylvania Supreme Court had “adopted a controversial interpretation of important provisions of the Pennsylvania Election Code“ in its ruling. Despite that, they did not dissent on Friday because, Alito noted, the U.S. Supreme Court couldn’t do what the RNC was asking here because this case involved the primary election.

At the same time, Alito also stated that “[t]he application of the State Supreme Court’s interpretation in the upcoming election is a matter of considerable importance” — a sure signal from the trio to the RNC, Donald Trump, and other possible litigants, although Alito claimed that he was “express[ing] no view” on that “matter” on Friday.

The remaining six justices neither wrote nor joined any statements regarding Friday’s request.

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Although the two-paragraph statement could be written off as the ramblings of a grumpy man, this is clearly a set up. To understand why, you have to go back 16 months to when the Supreme Court, on a 6-3 vote in Moore v. Harper, rejected the “independent state legislature” scheme — a decision Alito cited in his statement.

Had the court accepted the scheme, the U.S. Constitution’s provision assigning responsibilities to state legislatures for setting federal election rules would, essentially, write out the possibility of state judicial of those decisions. But, as Chief Justice John Roberts wrote for the court at the time, “The legislature acts both as a lawmaking body created and bound by its state constitution, and as the entity assigned particular authority by the Federal Constitution. Both constitutions restrain the legislature’s exercise of power.“

In other words, and as I often say when discussing the case: A state legislature doesn’t exist in nature. The U.S. Constitution only assigned those powers to a body that itself already had limits on its powers by the state constitution that created it — including state court judicial review.

And yet — in a move that was called a “middle ground position” by UCLA law professor and election law expert Rick Hasen after arguments in the case — Roberts also wrote that there are limits to state court involvement. The court did not lay out a test beyond stating that “state courts may not transgress the ordinary bounds of judicial review.”

Thomas — along with Alito and Gorsuch — were the dissenting justices in Moore. Thomas wrote, and Gorsuch was the only justice to join him in backing the “independent state legislature” scheme. Alito joined the pair in arguing that the court should not have been hearing the case at all, but he expressed no view on the scheme itself.

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Which brings us back to Friday night — and the set-up aspect of Alito’s statement.

Alito revealed that, in the wake of Roberts’s “middle ground” note in Moore, he, Thomas, and Gorsuch were open, in the context of Tuesday’s general election, to considering in a future case whether the Pennsylvania Supreme Court had gone too far.

They signaled, in other words, that they think that the Pennsylvania Supreme Court’s decision might very well be the type of decision that Roberts was talking about.

Given Thomas and Gorsuch’s views in Moore, their being open to this argument isn’t a surprise. That Alito wrote it is not exactly a surprise, what with him being Alito and all, but it did represent a closer-to-the-merits position than he had taken in Moore. Additionally, in his first writing on the topic, he was joined by the two justices who backed the “independent state legislature” scheme — suggesting they think he’s on the right side of this argument. Finally, and despite claiming that he was not expressing a view on the merits of the RNC’s claim, Alito did call the state court’s decision “controversial,” which at least signals a view on the merits.

The question — as it so often is given the makeup of the current court — is whether another justice would even want to take up the matter and, if so, whether two would join the trio to make a majority decision for the U.S. Supreme Court ruling that the Pennsylvania Supreme Court, in interpreting state law, went too far.

If that sounds like it would be an extreme ruling approaching lawlessness, you’re not wrong.

And yet, as Roberts acknowledged in his Moore v. Harper decision, the court “last discussed the outer bounds of state court review” in the elections context in 2000.

The case was Bush v. Gore, and the court’s conservatives there issued a decision effectively ending Al Gore’s challenges in Florida, handing the election to George W. Bush — not a reassuring sign when today’s litigants would be going before a significantly further right court.