How Trump’s Lawsuits May Change America’s Electoral Jurisprudence

The return of Bush v. Gore

Joseph R. Biden Jr. is now president-elect of the United States. Notwithstanding the many emotions that accompany this hard-fought revelation, the current occupant of the White House nevertheless (rather predictably) broke with the tradition of a concession speech, and instead signaled his intent to double down on his meritless claims of fraud in state and federal courts.

Photo by Ian Hutchinson on Unsplash

It is clear that President Trump’s legal arguments of fraud are not supported by facts; it is safe to speculate that his convictions in these claims predicate partly on the political need to sensationalize and inflame public passion as support, and partly on a deluded perception of the American judiciary as a place where judges defer to presidents — and certainly to the president that appointed them.

While most claims are tossed out by various state and federal courts, the Republican Party’s suit challenging the Pennsylvania Supreme Court’s decision to extend the mail-in ballot deadline by three days is a notable one. It has the potential to hand the G.O.P. a favorable and far-reaching judicial precedent that would cement its capabilities to either bolster and hamstring state electoral procedures to their advantage.

This case arises out of the state high court’s interpretation of a Pennsylvania election law, in which the state justices stated that the Pennsylvania Constitution demanded the three-day extension to ensure fairness. The Republicans argue that state high courts have no authority to issue this decree since the federal Constitution, in Article II, Section 1 (presidential electors clause), explicitly grants that right to the Pennsylvania state legislature: “Each State shall appoint, in such Manner as the Legislature thereof may direct,” the electors for president and vice president.

On October 26 and then October 28, the Supreme Court issued two pieces of opinions in both a similar case with Wisconsin’s election laws and this one. Taken together, there were at least four justices — Justices Kavanaugh, Alito, Gorsuch and Thomas — who expressed enthusiasm for such a strict reading of the presidential electors clause, first marshaled by the late Chief Justice Rehnquist in the court’s famous 2000 ruling in Bush v. Gore. Justice Rehnquist, then joined by Justice Thomas, wrote a concurrence that invoked concededly broad powers to strike down a state high court’s interpretation of state law:

[The presidential electors clause] “convey[s] the broadest power of determination” and “leaves it to the legislature exclusively to define the method” of appointment. A significant departure from the legislative scheme for appointing Presidential electors presents a federal constitutional question. … Though we generally defer to state courts on the interpretation of state law there are of course areas in which the Constitution requires this Court to undertake an independent, if still deferential, analysis of state law…

In his opinion appended to the October 28 ruling regarding the Pennsylvania case, Justice Alito expressed deep misgivings about the state high court decision: he reasoned that the court’s opinion strays so much from statutory interpretation that it amounts to (usurping) legislative powers. On the surface, the court is now poised to vote to reverse the Pennsylvania Supreme Court, setting a narrowing precedent that bolsters state legislatures’ powers.

This theory is not without its detractors. The justices in the minority were deeply skeptical of this interpretation of the Constitution and protested its cavalier, formalistic reading at the expense of well-established state procedures. In his dissent, Justices Stevens wrote that this reading subverts the constitutional mandate for states to have a republican form of government — specifically, by denying the institutional checks and balances built into the state constitutions, the source of legislative powers.

[The Constitution] does not create state legislatures out of whole cloth, but rather takes them as they come — as creatures born of, and constrained by, their state constitutions. … The legislative power in Florida is subject to judicial review pursuant to Article V of the Florida Constitution, and nothing in Article II of the Federal Constitution frees the state legislature from the constraints in the state constitution that created it.

Similarly, Justice Ginsburg echoed this reasoning.

The Chief Justice’s solicitude for the Florida Legislature comes at the expense of the more fundamental solicitude we owe to the legislature’s sovereign. Were the other members of this Court as mindful as they generally are of our system of dual sovereignty, they would affirm the judgement of the Florida Supreme Court.

Certainly, the Pennsylvania case is not a carbon copy of Bush. But its revival by the legal architects who secured a momentous win twenty years ago is cause for alarm to voting rights advocacy groups. If this line of reasoning — known as the independent state legislature doctrine — is affirmed by the court, it could have adverse and far-reaching implications for the field of election laws including districting, polling locations, gerrymandering, and questions on federalism and electoral politics. By conferring an unconventional degree of autonomy onto state legislatures (most of them led by Republicans) in the matter of federal elections, it could invite even more partisan politics to intrude on the arena of nonpartisan endeavors such as voting.

It is true that it’s a long shot at best for the president to reap victory in the 2020 election — the lawsuit is unlikely to lend him enough advantage to reach a second term. But twenty years after Bush and ten after Citizens United v. FEC, the case of Republican Party of Pennsylvania v. Boockvar may insidiously catalyze the encroaching politicization of many federal elections to come — and spell a moment of triumph for a party that has long vied for institutional advantage.

Bowdoin College ’23. I write.