Commentary: Big Tent Ideas

CHAD ENNIS: This Election Is Already Being Litigated

Screen Capture/Supreme Court of the United States

We have the first big United States Supreme Court decision of the 2024 election cycle. The court let stand a commonsense move by Virginia to remove ineligible voters from its voter rolls.

In Pennsylvania, an intermediate appeals court previously found that misdated and undated mail ballots must be counted even though they do not comply with Pennsylvania law. Like the United State Supreme Court, the Pennsylvania Supreme Court followed the law and stayed the lower court’s opinion.

First, the news from the Supreme Court. Virginia examined their voter rolls and removed people that had informed the state they were not citizens. This information came from different sources, but the key is these people at some point self-reported to the state that they were not citizens and, therefore, ineligible to vote. Unsurprisingly, based upon their own statements, Virginia removed them from the rolls. As an aside, Virginia has same day voter registration so any citizen mistakenly removed from the rolls can re-register on election day at a polling location and vote.

Even though Virginia took their actions in August, the Biden-Harris Department of Justice waited until October to sue the state. They claim Virginia’s move to remove ineligible voters from the rolls was barred by federal law because the removal occurred less than 90 days before the November election. Biden-Harris wants to force Virginia to keep people on its voter rolls that have told the state they are ineligible! Reminds me of a quote from my law school professor, “If the law is giving you an absurd result, you are reading it wrong.” The DOJ has not heard that one. Nevertheless, the DOJ was able to convince a lower court that they should do the absurd. Thankfully, the Supreme Court stepped in allowing Virginia to remove the ineligible voters. This bodes well going forward because it signals that the Supreme Court will step in during this election cycle when lower courts step out of line.

Similarly, the Pennsylvania Supreme Court had to issue an emergency ruling to stay a lower court’s egregious ruling.

Pennsylvania courts remain difficult to predict – something you never should have to say about the law. Both the Pennsylvania Supreme Court and a federal appeals court previously found that under Pennsylvania law, if a mail ballot is returned misdated or undated it should not be counted. These are not ancient opinions from when Pennsylvania was a colony. These opinions were issued within the last couple of years. Precedent should settle the issue, but the ACLU cannot be deterred. Their legal tenacity resembles Jason at the end of a Friday the 13th movie. You think he is dead, but he just keeps trying to get up and kill someone.

In a bit of twisting that would make Chubby Checkers proud, the court became a pretzel to reach its conclusions.

First, the case itself concerns an uncontested special election. The misdated ballots at issue will have no effect on the election whether they are counted or not. If you look up “moot” in the dictionary, you will find a description of this case. There is no reason for the court to rule on the legal issues; it makes no difference to the dispute in front of them.

Second, they had to ignore the previous two rulings on this exact issue from higher courts by pretending that their case presents different legal issues.

Finally, the court effectively rewrote the law, ignoring the legislature’s compromise. Pennsylvania’s mail voting bill requires ballot envelopes to be signed and dated, with a clause stating that if any part of the bill was deemed unconstitutional, the entire bill would fall — preserving both sides’ negotiated terms. Instead, the court dismissed this clause, undermining the legislative bargain. Such judicial activism threatens legislative compromise by forcing lawmakers to wonder if their agreements will simply be erased by the courts.

Unbelievable!

Late on Nov. 1, the Pennsylvania Supreme Court stayed this opinion and restored their previous guidance on misdated and undated mail ballots. So, in the general election, misdated and undated mail ballots will not be counted.

At the end of the day, it is good that the United States Supreme Court has signaled that it will weigh in decisively on issues that arise in the 2024 election. It is also good news that the Pennsylvania Supreme Court has signaled that it will ensure that Pennsylvania courts will follow precedent. Let’s hope that both courts continue with strong spines as we head into the election.

Chad Ennis is the Vice President of the Honest Elections Project.

The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller News Foundation.

Featured Image: Screen Capture/Supreme Court of the United States