How a pending SCOTUS case could strengthen the power of Pa. GOP in elections
A pending U.S. Supreme Court case with national implications could soon give Pennsylvania's Republican-dominated Legislature the green light for an overhaul of election rules.
The outcome of Moore v. Harper could result in state legislatures across the country having sole authority over election law and redistricting. In the two weeks since the Supreme Court agreed to hear that case, which originated in North Carolina, election and legal experts have said a ruling favoring the Republican plaintiff could "provide the path for election subversion" and "undermine democracy."
Some voter rights advocates are already alarmed by the possibility in Pennsylvania. They fear that Republicans, given the keys to the kingdom, could employ tools that amount to voter suppression.
"I just cant express how huge that (case) is considering the political climate that we're faced with in this country," said Khalif Ali, executive director of the nonprofit Common Cause Pennsylvania.
"We are always concerned if there are rulings that tend to upset the balance and separation of powers in a democracy," he said. "We think that balance, that separation was put there for a reason — to not elevate any particular branch of government."
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Republicans, including state Rep. Seth Grove (R-York), meanwhile, say the changes they've proposed will simply ensure clean and fraud-free elections.
"I watch it very closely," Grove said of Moore v. Harper. "It could have tremendous impact."
In the fall, the U.S. Supreme Court is to take up a case advanced by Republicans in the North Carolina Legislature challenging their state court's authority to strike down a congressional map approved by lawmakers. An override of state court authority would position the politicians, not court justices, as the ultimate authority in determining federal election laws.
The U.S. Supreme Court is being asked to clarify a clause in the Constitution that delegates responsibility for federal election rules to the "legislature" of each state subject to congressional oversight.
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Plaintiffs in the North Carolina case argue that this literally means that state legislatures alone have the power to draft voting regulations. Others — including the late Supreme Court Justice Ruth Bader Ginsburg, who ruled on a similar case just seven years ago — said that "legislature" referred to a state's general power to create laws. Ginsburg called it "perverse" to interpret legislature as state lawmakers alone.
Others on the court seem less sure.
Associate Justice Brett Kavanaugh, nominated by Republican former President Donald Trump, said the North Carolina lawsuit presented an "important" questions and that "both sides" had "advanced serious arguments." Kavanaugh and Chief Justice John Roberts, also a Republican appointee, have long been viewed as near the ideological center of the court. Both were in the majority in 95% of cases this term, statistics compiled by SCOTUSblog show.
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Though the case will not be decided in time to impact midterms, it could create a frenzy of new election laws from the GOP Legislature in Pennsylvania and beyond ahead of the 2024 election.
A ruling in this case could result in the elimination of checks and balances provided by the governor and Supreme Court of Pennsylvania. This would free the Republican-led General Assembly to enact measures such as House Bill 1300, which was vetoed by Democratic Gov. Tom Wolf last year.
According to Wolf, House Bill 1300 would:
- impose voter identification restrictions found unconstitutional by Pennsylvania courts.
- limit mail-in voting with "burdensome" requirements.
- mandate a signature match for mail-in ballots without a system for checking it.
- erase the use of ballot drop boxes by establishing onerous requirements on ballot delivery locations.
- eliminate mail-in voting.
- end the option of going to a county election office to apply for and obtain a mail-in ballot during the same day
- require residents to register to vote to 30 days before an election instead of 15, "among the most restrictive deadlines in the nation."
"This bill is ultimately not about improving access to voting or election security," Wolf wrote in his rebuttal to that bill, "but about restricting the freedom to vote. If adopted, it would threaten to disrupt election administration, undermine faith in government, and invite costly, time-consuming, and destabilizing litigation."
As chair of the Pennsylvania House's State Government Committee, Grove sponsored House Bill 1300. He calls himself "The Architect" in his Twitter handle, and a favorable ruling in the U.S. Supreme Court case may indeed position him to be the chief architect of the commonwealth's voting laws. A court endorsement of the independent legislature doctrine could also give Grove and the Republican majority the ability to redefine the commonwealth's legislative districts, which Grove and colleagues already attempted through House Bill 2146.
He added that it "would be a big to-do" if the court ruled this way.
According to Grove, the U.S. Constitution seems clear in giving the legislatures sole responsibility for election rules and district maps. He hopes for a ruling that reflects that.
Speculation over the case has included the radical notion that the justices could strike down the Electoral Count Act by allowing legislators to send alternate slates to the Electoral College, ignoring the popular vote altogether and dramatically altering the way American presidents are chosen.
Grove said he's hesitant to presume how courts will interpret cases. But, he added, he'd be shocked if the Electoral College system is impacted by Moore v. Harper.
Still, if the U.S. Supreme Court embraces theindependent legislature doctrine, the only way for Democrats to reverse sweeping changes made by Pennsylvania's GOP majority might be to take back the state House and Senate. That could prove more difficult, however, because Republicans could also redefine congressional districts in their favor.
Wolf already vetoed a bill of this kind, sponsored again by Grove, earlier this year. The governor characterized Grove's map as unfair and partisan.
To state Sen. Katie Muth (D-Montgomery/Chester/Berks), there'd no end in sight to the GOP majorities in the General Assembly if Republican lawmakers could draw their own maps unchecked.
"This effort that's going on is just another partisan trick," Muth said. "(It's) limiting democracy again."
An independent legislature doctrine, if in effect prior to the last presidential election, could have impacted that race as well — though not likely the outcome.
GOP challenges in 2020 to a three-day extension for county election workers to tally votes were unsuccessful. The U.S. Supreme Court declined to overturn this allowance, which had been implemented by the Supreme Court of Pennsylvania at the request of Pennsylvania Democrats including Attorney General Josh Shapiro, who cited the COVID-19 pandemic and mail-in voting expansion as reasons the extension was needed.
Shapiro is now campaigning to succeed Wolf as governor against Republican Doug Mastriano, a state senator who has voted in favor of Grove's bills to overhaul voting laws and redraw the congressional maps.
“Our democracy was born here in the Commonwealth of Pennsylvania, where we have a unique responsibility to defend it," Shapiro said during a recent MSNBC interview.
"I'm going up against someone who has tried to work overtime to not only overturn the last election, but promised that he will use his authority as the would-be governor to deliver the next election for the former president. It's very, very dangerous, and the stakes are very high."
Though Mastriano's campaign did not respond to a request for comment on this topic, he has stated in recent interviews that he favors a constitutionally questionable plan to require all Pennsylvanians to re-register to vote.
“So we’re going to take (voter reform) very seriously and move really hard. Basically we have about a year to get that right before the 2024 presidential election,” Mastriano said.
If the U.S. Supreme Court endorses the independent legislature doctrine, Mastriano won't even need to win the governor's race for him and Republican allies to implement at least some of those measures without the threat of a veto or court intervention.
Legislative majorities — here and across America — would have unilateral authority.
Bruce Siwy is a reporter for the USA Today Network's Pennsylvania state capital bureau. He can be reached at email@example.com or on Twitter at @BruceSiwy.