Is There Another Scenario That Makes Justice Alito’s Dec. 9 Response Date Meaningful in Different Way?

 
By Shipwreckedcrew

I’ve spent some time reading comments to this story I wrote yesterday as well as many other legal analysts’ views on what — if anything — can be divined from the fact that Justice Samuel Alito ordered the State of Pennsylvania and other defendants to respond by December 9 to the action filed by GOP Congressman Mike Kelly seeking to declare unlawful the “no excuse” mail-in voting scheme used in the November election.

In my story yesterday I noted that the due date for the opposition papers is one day after the last day on which the Pennsylvania electors could be named based on the election results as certified by the Secretary of the Commonwealth and that there is currently no court order which prevents that from happening.  As some have noted, the end of the “safe harbor” period — December 8 — is simply a date established by Congress by which a state benefits if all election disputes are settled and the outcome is certified by the state at least six days prior to the meeting of the Electoral College.  The states are not required to meet this deadline, it only provides that certain challenges to a state’s naming of electors will not be entertained if the state does meet the deadline.

What many have correctly noted is that this “safe harbor” provision has no legal effect on what the Supreme Court can do if it were to find merit in any election challenge it chooses to hear.  Until the Electoral College actually meets and votes, the Court possesses the authority to issue an injunction preventing the electors from any particular state from being able to lawfully participate on the basis that the manner of their selection was legally invalid.

The Court itself gave this “safe harbor” provision notoriety in Bush v. Gore when it used the statute as a basis to not send the matter back to the Supreme Court of Florida so that Court could address the flaws in the statewide “recount” that it had ordered to take place.  The lack of consistent statewide standards for executing that recount was the basis upon which the US Supreme Court halted the Florida Court-ordered recount.

The US Supreme Court blocked the recount from resuming with reformulated standards because the Court issued its decision on the last day of the “Safe Harbor” period, and the Court found that the Florida Legislature had expressed an intention to take advantage of that provision in the Florida election statute.  As such, there was no time for the Florida Supreme Court to remedy its errors — even though the Electoral College meeting was still a week away.  Many legal commentators at the time decried that justification as simply an excuse put forward by the US Supreme Court to stop any further recount from taking place in Florida that might again switch the outcome of the race.

Given the actual purpose of the Dec. 8 “safe harbor” deadline, the fact that Justice Alito has set the date for the opposition papers to be filed as of December 9 is “noteworthy” but not necessarily impactful on what the Court can still do.

Most of the legal pundits on the left have been dismissive of the claims made in the lawsuit brought by Kelly and predicted that the matter would be summarily dismissed.  They all conflate the extreme nature of the remedy sought with the underlying merits of the case as their reason for rejecting the merits.  I have yet to find a meaningful argument advanced in opposition to Kelly’s claims on the merits — the opposition seems only to focus on the prospect of  “disenfranchising” millions of voters who cast votes in a manner that they understood to be lawful based on what they were told by the state and county officials.

Other than remaining “hopeful” in a metaphysical sense, is there anything that might be read into the fact that Justice Alito seems to have given the state defendants an inordinately long amount of time to respond to an Emergency Application for an injunction under the circumstances?

Maybe it’s to give the Court more time.

Maybe it’s to lay the groundwork for use of a “MOAB” (“Mother of all Bombs”) remedy with respect to Pennsylvania. While it might be “shocking” to the political system in 2020, it might also be the “electro-shock paddles to the chest” that the political branches need to shake themselves out of their current descent into open warfare with respect to the ground rules for conducting elections.

This supposition begins with the premise that inside SCOTUS there is a view that the Pennsylvania Supreme Court has made itself into little more than an extension of the partisan political machine run by the Pennsylvania Democrat Party in the large metropolitan areas of the state. Its only judicial philosophy seems to be to promote the positions advanced by Democrats and defeat the positions advanced by Republicans.  In 2020 this partisanship crossed over into the realm of how elections are conducted and threatens to eliminate the possibility of fair electoral outcomes in a state with a closely divided electorate.

How should the US Supreme Court respond to a State Supreme Court that has allowed itself to become captured by political interests — a state that elects the members of the Court, which means that by manipulating the election process the Court’s composition in favor of one political party will become a self-perpetuating reality.

One way to do that would be to “discipline” the electorate of the state and make them recognize what has been done in their name.

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