Last week, Pennsylvania’s state Supreme Court upended the carefully crafted work of Pennsylvania’s Legislature by mandating that mail-in ballots received after Election Day be counted. Worse yet, the court also ruled that such ballots need not have a postmark proving that they were mailed by Election Day.
In issuing this order, Pennsylvania’s highest court played into the hands of a nationwide plot that irresponsibly opens the door to election chaos.
Over the past several years, Washington, D.C.’s left-wing establishment launched an unprecedented attack not only on President Trump but on democracy as well. The elites believed Trump’s 2016 voters (i.e., the “deplorables,” or in the words of disgraced FBI Agent Peter Strzok, the ones you can “smell at Walmart”) had to be corrected. Their Russia-collusion investigation, which was grounded in falsehoods, had a simple goal: to prevent Trump’s election, or if that failed, then to overturn the result.
It didn’t work, and so the Left has been pushing for changes in election procedures that will increase voter fraud opportunities and diminish the 2020 election’s legitimacy in the eyes of the voting public. In Pennsylvania alone, multiple lawsuits were filed, including one from Marc Elias, the Washington lawyer who, on behalf of the 2016 Hillary Clinton campaign, hired Fusion GPS to investigate Trump.
So no, the rush of election lawsuits in Pennsylvania did not arise from a grassroots initiative of aggrieved Pennsylvanians. Instead, it began with the same lawyer who hired Fusion GPS, the firm responsible for the infamous Steele dossier that the FBI used to obtain an illegal warrant to spy on a Trump campaign associate.
The Keystone State is not the only target. Elias is overseeing a nationwide scheme from Washington, D.C. He has filed substantially the same lawsuit in at least a dozen states. The cases are designed to create crevices in state election laws that can be exploited when the November vote is counted. Call it fracking for votes — and the shale in which he is drilling is the new mail-in voting process. But with fracking, you need to be careful with what comes up.
The Pennsylvania Supreme Court’s recent decision is on a case similar to the one Elias filed (the decision rendered the Elias case moot) involving Pennsylvania’s new mail-in voting law. That law was a compromise measure negotiated in the state’s Legislature, which has exclusive power under the U.S. Constitution to determine the manner of elections for federal office.
In allowing vote-by-mail, Pennsylvania’s Legislature simultaneously added safeguards to protect against fraud. It would have been legislative malpractice not to do so. A 2005 bipartisan commission led by Former President Jimmy Carter and former Secretary of State James Baker called mail-in voting “the largest source of potential voter fraud.” Pennsylvania’s protective measures include the requirement that mailed ballots be received at a county’s election office by 8 p.m. on Election Day.
Elias and others sued to disrupt this balance. As Elias has done in other states, he challenged, among other provisions, the Election Day deadline for receiving ballots. That Elias or any litigant would request the counting of ballots received after Election Day is incredibly irresponsible in these volatile times, particularly when alternative solutions are available. It simply does not serve the public interest to have votes trickle in for days after an election. Too many questions would be raised about such ballots’ origination and handling, especially now in light of the Pennsylvania Supreme Court’s order that postmarks not be required.
Pennsylvania’s Legislature was prudent to build in safeguards, including the Election Day deadline, to protect not only the integrity of mail-in ballots but of the election itself. The Legislature would never have passed the law, had it allowed ballots to be received after Election Day. The state Supreme Court’s order to the contrary raises serious questions under the U.S. Constitution’s Elections Clause.
Apart from the dubious constitutionality of the Pennsylvania court’s action, there was simply no need to extend the ballot deadline. Voters are fully engaged in this election. Hundreds of thousands of Pennsylvanians have applied for ballots already. Postmaster General Louis DeJoy recently told the Postal Service’s Board of Governors that the service “has ample capacity to deliver all election mail securely and on-time in accordance with our delivery standards.” Moreover, there was a less disruptive remedy available to the court that still honored the Legislature’s concerns about election deadlines. In dissent, one of the court’s Democrats suggested that the Election Day deadline could remain in place if voters were simply required to mail in their ballot applications a few days earlier.
There are concerns with mail-in voting that go beyond those being litigated across the country — in particular, how ballots completed outside of a voting booth can be completed in secret without pressure from family or peers. But the compromises that resulted in Pennsylvania’s mail-in voting law should not be upended through activist lawsuits that thwart legislative compromises and diminish the election’s perceived legitimacy.
Keith Rothfus represented Pennsylvania’s 12th Congressional District between 2013 and 2019 and lives near Pittsburgh. He is on Twitter @KeithRothfus.
