Justice Samuel Alito, Prophet
https://www.nysun.com/editorials/justice-samuel-alito-prophet/91326/
Is it but coincidence, we wonder, that Samuel Alito is the Justice who led the dissenters against the decision of the Supreme Court last week to take a powder on Pennsylvania? That is, could it be merely coincidence that the justice who seems to grasp the possibility of malfeasance in the swamp of Pennsylvania is the only justice to have served as United States attorney for the District of New Jersey (and rode the Third Circuit, based at Philadelphia)? Or is Justice Alito just naturally savvier?
What prompts these questions is President Trump’s motion at the Supreme Court today to join the legal fray over the vote in Pennsylvania. He is picking up on Justice Alito’s statement last week in Republican Party of Pennsylvania v. Kathy Boockvar, secretary of state of Pennsylvania. The GOP was trying to get the Nine to address, before the election, Republican concern over the handling of the vote in the Quaker State.
The court declined, for the moment. Justice Alito, joined by Justices Thomas and Gorsuch, issued a remarkable statement. The Court, Justice Alito wrote in what has turned out to be an understatement, “has needlessly created conditions that could lead to serious post-election problems.” Given what’s come into view in the past twenty-four hours, it looks as if Justice Alito has the gift of pre-vision.
Justice Alito, in any event, goes on to note that the Supreme Court of Pennsylvania has “issued a decree that squarely alters an important statutory provision enacted by the Pennsylvania Legislature pursuant to its authority under the Constitution of the United States to make rules governing the conduct of elections for federal office.” He cited the law called Act 77, passed last year.
Act 77, in Justice Alito’s telling, “permitted all voters to cast their ballots by mail but unambiguously required that all mailed ballots be received by 8 p.m. on election day.” The law, Justice Alito noted, “also specified that if this provision was declared invalid, much of the rest of Act 77, including its liberalization of mail-in voting, would be void.” The legislature later refused to change the deadline because of the coronavirus pandemic.
Yet in the face of Act 77’s deadline, Justice Alito noted, a divided Pennsylvania court “decreed that mailed ballots need not be received by election day.” Instead, it confected a new rule — that ballots “are to be treated as timely if they are postmarked on or before election day and are received within three days thereafter.” Quaker State sages also ordered that a ballot with no postmark must be accepted if received on time.
A month ago, Justice Alito goes on, the GOP in Pennsylvania and the Quaker State Senate’s leaders asked the U.S. Supreme Court to stay the Pennsylvania’ Supreme Court’s decision. They argued the state court decision violated the U.S. constitution and “the federal statute setting a uniform date for federal elections.” Yet the our high court denied the stay — “by an equally divided vote.” Justice Barrett hadn’t yet settled in.
Justice Alito acknowledged, in his statement, which was made October 28, that he understands the matter couldn’t be resolved before the election. Yet, he reckoned, that doesn’t mean that the Supreme Court can’t — after the election — grant certiorari and open up the question of whether Pennsylvania is handling these mail-in ballots in a constitutional way and seek various relief.
What we make of this is that Justice Alito has laid out the logic for President Trump to turn to the Supreme Court, as he has just done. It would be wrong for Justice Barrett, in our view, to hang back from participating in this phase of the proceedings. We need the court operating at full steam. Particularly because Pennsylvania is but one case in a rapidly expanding and historic legal contest.
We understand that the election may soon be called for Vice President Biden, making Mr. Trump’s claims look moot. Yet the Associated Press reports that the President or the GOP or both are, in addition to the President’s petition to the Supreme Court today, now in court in Pennsylvania and Michigan and Georgia, joining Republican lawsuits in Nevada and Pennsylvania. We favor taking the time to hear these claims. We see Justice Alito’s statement as a warning against a rush to judgment.
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Image: Detail of Photograph of Justice Alito, United States Supreme Court via Wikipedia.
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