IN the SUPREME COURT of the UNITED STATES ------REPUBLICAN PARTY of PENNSYLVANIA, Petitioner, V

Nos. 20-542, 20-574 ------

IN THE SUPREME COURT OF THE UNITED STATES ------REPUBLICAN PARTY OF PENNSYLVANIA, Petitioner, v. KATHY BOOCKVAR, IN HER OFFICIAL CAPACITY AS PENNSYLVANIA SECRETARY OF STATE, ET AL., Respondents. ------JOSEPH B. SCARNATTI, III, ET AL., Petitioners, v. PENNSYLVANIA DEMOCRATIC PARTY, ET AL., Respondents. ------On Petitions For Writs Of Certiorari To The Pennsylvania Supreme Court ------

OPPOSITION TO PETITIONS FOR WRIT OF CERTIORARI OF INTERVENOR/APPLICANTS THOMAS J. RANDOLPH AND C.F. CANAVAN

Respectfully submitted, Helen Randolph, Counsel of Record P.O. Box 17416 2043 Wilson Boulevard Arlington, Virginia 22216 302-907-9831 [email protected] Counsel for Intervenor/Applicants Randolph/Canavan November 30, 2020

TABLE OF CONTENTS

I. THE PENNSYLVANIA SUPREME COURT DID NOT USURP THE AUTHORITY OF THE PENNSYLVANIA LEGISLATURE IN DETERMINING THAT ABSENTEE VOTERS COULD CAST THEIR BALLOTS ON ELECTION DAY AND HAVE THEM COUNTED IF THEY WERE RECEIVED WITHIN THREE DAYS OF ELECTION DAY ...... 5

A. Legislative Authority under Articles I and II ...... 5

B. Limitations on the Legislative Authority ...... 6

1. The Guarantee Clause of Article IV ...... 7

2. The First, Fifth, and Fourteenth Amendments ...... 9

C. State Court Review of Election Law ...... 12

1. State Courts Have the Authority to Determine the Constitutionality of State Legislative Enactments Regarding Elections and to Devise Remedies when Necessary ...... 12

2. The Standard of Review ...... 15

D. The Pennsylvania Court Acted Within Its Authority ...... 17

II. THE DECISION OF THE PENNSYLVANIA SUPREME COURT EXTENDING THE RECEIVED-BY DATE TO THREE DAY S AFTER ELECTION DAY AND THE PRESUMPTION THAT BALLOTS SO RECEIVED WERE CAST ON OR BEFORE ELECTION DAY IS NOT PREEMPTED BY FEDERAL STATUTES THAT ESTABLISH A UNIFORM NATIONAL ELECTION DAY ...... 19

III. The United States Constitution Requires That Absentee Voters Be...... 22 Allowed to Cast Their Votes On Election Day...... 22

TABLE OF AUTHORITIES

Cases

Anderson v. Celebrezze, 460 U.S. 780 (1983)...... 13, 14

Baker v. Carr, 369 U.S. 186 (1962) ...... 4

Burdick v. Takushi, 504 U.S. 424 (1992)...... 14

Bush v. Gore, 531 US 98, (2000)...... 5, 7, 11

Bush v. Palm Beach County Canvassing Bd., 531 U.S. 70 (2000) ...... 11

Chiafalo v. Washington, 140 S.Ct. 2316 (2020) ...... 4

Cipollone v. Liggett Group, 505 U.S. 504 (1992) ...... 17

Citizens United v. Federal Election Commission, 558 U.S. 310 (2010) ...... 13

Doe v. Reed, 561 U.S. 186 (2010) ...... 10

Foster v. Love, 522 U.S. 67 (1997) ...... 19

Gray v. Sanders, 372 U.S. 368, 380 (1963), ...... 8

Kusper v. Pontikes, 414 U.S. 51 (1973) ...... 9, 14

McDonald v. Board of Election Comm’rs of Chicago, 394 U.S. 802 (1995) ...... 23

McPherson v. Blacker, 146 U.S. 1 (1892) ...... 12, 13

NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958) ...... 9, 14

Nevada Commission on Ethics v. Carrigan, 564 U.S. 117 (2011) ...... 9

Republican Party of Min.. v. White, 536 U.S. 765 (2002) ...... 10

Smiley v. Holm, 285 U.S. 355 (1932) ...... 7

Storer v. Brown, 415 U.S. 724 (1974) ...... 4

Tashjian v. Republican Party, 479 U.S. 208 (1986) ...... 4, 5, 9

Washington et al. v. Confederated Bands and Tribes of the Yakima Indian Nation, 439 U.S. 463 (1979) ...... 20

Williams v. Rhodes, 393 U.S. 23 (1968) ...... 4

Williams v. Virginia State Board of Elections, 288 F. Supp. 622 (E.D. Va. 1968) ...... 4

Yick Wo v. Hopkins, 118 US 356, 370 (1886) ...... 8

Constitutional Provisions

U.S. Const. amend. 1 ...... 11

U.S. Const. amend. XIV, § 2, cl. 2...... 10

U.S. Const. art. I, §4, cl. 1 ...... 3, 25

U.S. Const. art. II, §1, cl. 2 ...... 3

The Pennsylvania Supreme Court did not usurp the authority of the Pennsylvania State

Legislature, but legitimately exercised its own authority to review state law for constitutionality and to devise a remedy upon finding that the law might have unconstitutional effects in the particular circumstances of the 2020 pandemic. Two fundamental components of the right to republican government are implicated in this case: 1) the separation of powers wielded by the various branches of government, and 2) the right to representation of the people in the selection of officials to govern them.

A. Legislative Authority under Articles I and II

The Constitution of the United States gives States primary authority for determining how the President, Vice President and federal legislators are selected. With respect to the election of electors for the offices of President and Vice President, U.S. Const. art. II, §1, cl. 2 states:

Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors. . . .

With respect to elections for members of the federal legislature, U.S. Const. art. I, §4, cl. 1 states:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators.

These provisions say that when a state has responsibility for selecting federal officers, the legislative authority which must be exercised to bring election procedures into being resides with

5 the state legislature, rather than with the federal legislature. State executives, courts and constitutions may not alter the grant of such authority to state legislatures.

B. Limitations on the Legislative Authority

In a republican government, however, no branch of government has unfettered power.

Article 4 of the Constitution requires that state governmental activity embody and result in a

“republican” form of government:

The United States shall guarantee to every State in this Union a Republican Form of Government. . . .

Similarly, it has long been established that state legislatures may not violate the First

Amendment, the Fifth Amendment, or the Fourteenth Amendment of the United States

Constitution in enacting election laws, and that these issues are not political questions which evade judicial review. See, e.g., Baker v. Carr, 369 U.S. 186 , 237 (1962), Reynolds v Sims, 377

U.S. 533 (1964). This is true both of laws under the authority of Article II, broadly choosing the manner of appointment of presidential electors, and of laws under the authority of Article I, regulating elections so that they are “fair and honest and [subject to] some sort of order, rather than chaos,” as described in Storer v. Brown, 415 U.S. 724, 730 (1974). See, e.g., Chiafalo v.

Washington, 140 S.Ct. 2316, 2324 n.4 (2020)(“Checks on a State’s power to appoint electors, or to impose conditions on an appointment, can theoretically come from anywhere in the

Constitution.”); Williams v. Rhodes, 393 U.S. 23, 29 (1968)(“[W]e must reject the notion that

Art. II, § 1, gives the States power to impose burdens on the right to vote, where such burdens are expressly prohibited in other constitutional provisions.”); Williams v. Virginia State Board of Elections, 288 F. Supp. 622, 626 (E.D. Va. 1968)(“[T]he manner of appointment must itself be free of constitutional infirmity.”); Tashjian v. Republican Party, 479 U.S. 208 (1986):

[T]he Constitution grants to the States a broad power to prescribe the "Times, Places and Manner of holding Elections for Senators and Representatives," Art. I, § 4, cl. 1, which power is matched by state control over the election process for state offices. But this authority does not extinguish the State's responsibility to observe the limits established by the First Amendment rights of the State's citizens. The power to regulate the time, place, and manner of elections does not justify, without more, the abridgment of fundamental rights, such as the right to vote, see Wesberry v. Sanders, 376 U.S. 1, 6-7 (1964), or, as here, the freedom of political association.

Tashjian, 479 U.S. at 217.

1. The Guarantee Clause of Article IV

The Guarantee Clause of Article IV imposes a duty on the States to maintain a republican form of government. Minor v. Happersett, 88 U.S. 162, 175 (1874). See also, Bush v. Gore, 531

U. S. 98, 112 (2000), in which Rehnquist, C.J., concurring, notes the constant requirement of

Article IV. “Of course, in ordinary cases, the distribution of powers among the branches of a

State's government raises no questions of federal constitutional law, subject to the requirement that the government be republican in character. See U.S. Const., Art. IV, § 4.”

As stated in Minor, “No particular government is designated as republican, neither is the exact form to be guaranteed, in any manner especially designated. Here, as in other parts of the instrument, we are compelled to resort elsewhere to ascertain what was intended.” Minor, 88

U.S. at 175. The Framers of the Constitution discussed this issue extensively.

James Madison defined a republic as:

“ a government which derives all its powers directly or indirectly from the great body of the people; and is administered by persons holding their offices during pleasure, for a limited period, or during good behaviour. It is essential to such a government, that it be derived from the great body of the society, not from an inconsiderable proportion, or a favoured class of it; ... It is sufficient for such a government, that the persons administering it be appointed, either directly or indirectly, by the people; and

that they hold their appointments by either of the tenures just specified .... ”

Federalist 39 (Madison) at 194 (emphasis in text).1

Hamilton discusses the federal innovation that could bind the States in a union:

“The proposed constitution, so far from implying an abolition of the state governments, makes them constituent parts of the national sovereignty, by allowing them a direct representation in the senate, and leaves in their possession certain exclusive, and very important, portions of the sovereign power. This fully corresponds, in every rational import of the terms, with the idea of a federal government.”

Federalist 9 (Hamilton) at 4. Thus, the States each possess a republican form of government and are themselves constituents of the republican form of the national government.

Hamilton specifically refers to both the separation of powers and the representative nature of the government:

The science of politics, however, like most other sciences, has received great improvement. The efficacy of various principles is now well understood, which were either not known at all, or imperfectly known to the ancients. The regular distribution of power into distinct departments; the introduction of legislative balances and checks; the institution of courts composed of judges, holding their offices during good behaviour; the representation of the people in the legislature, by deputies of their own election; these are either wholly new discoveries, or have made their principal progress towards perfection in modem times. They are means, and powerful means, by which the excellencies of republican government may be retained, and its imperfections lessened or avoided.

Id. at 38.

1 The Federalist, by James Madison, John Jay, and Alexander Hamilton, Gideon Edition, ed. George W. Carey and James McClellan, Pub. 2001 Liberty Fund, Inc., accessed at http://files.libertyfund.org/files/788/0084_LFeBk.pdf. All citations to the Federalist papers herein are taken from this source.

Articles I and II do not exempt state legislatures from the requirements of Article IV.

The legislature is subject to judicial review for constitutionality and both the state court and the state legislature must act to promote representative government.

2. The First, Fifth, and Fourteenth Amendments

When a State chooses to appoint electors by popular election, it grants authority to the people over the content of that appointment and creates a federal right to vote which is protected by name in the Fourteenth Amendment. The “right to vote at any election for the choice of electors for President and Vice-President of the United States” may not be “denied . . . or in any way abridged.” U.S. Const. amend. XIV, § 2, cl. 2. The manner of the popular election is prescribed in its fundamentals by the United States Constitution.

“When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter.” Bush v.

Gore, 531 US 98, 104 (2000). The Due Process Clauses of the Fifth and Fourteenth

Amendments, the First Amendment, and the Equal Protection Clause of the Fourteenth

Amendment all apply to the right to vote for electors.

a. The Right To Vote

In a republican form of government elections are the conduit between the people of the constitution and the government of the constitution.

“[I]n our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. . . . There are many illustrations that might be given of this truth. . . .

The case of the political franchise of voting is one. Though not regarded strictly as a natural right, but as a privilege merely conceded by society according to its will, under certain conditions, nevertheless it is regarded as a fundamental political right, because preservative of all rights.”

Yick Wo v. Hopkins, 118 US 356, 370 (1886). This Court described the rights affected by election laws in Williams v. Rhodes, 393 U.S. 23, 30-31 (1968):

In the present situation the state laws place burdens on two different, although overlapping, kinds of rights -- the right of individuals to associate for the advancement of political beliefs, and the right of qualified voters, regardless of their political persuasion, to cast their votes effectively. Both of these rights, of course, rank among our most precious freedoms.

This Court has established that electoral due process under the Fifth Amendment and the

Fourteenth Amendment requires the State to permit a voter’s vote to be effective, it must be counted.2 See, e.g. cases collected in Gray v. Sanders, 372 U.S. 368, 380 (1963).

b. The Right to Vote is Protected by the First Amendment

Voting is speech and elections are association, protected by the First Amendment, U.S.

Const. amend. 1. Voting is a voluntary activity intended to express a political preference. The vote itself is a command: “Note my preference for ______.” This Court consistently

2 In Gray v. Sanders, 372 U.S. 368, 380 (1963), dealing with both a U.S. Senate and a Governor’s election, the Court lists some of the protections of a qualified voter’s right to vote: The Court has consistently recognized that all qualified voters have a constitutionally protected right "to cast their ballots and have them counted at Congressional elections." United States v. Classic, 313 U.S. 299, 315; see Ex parte Yarbrough, 110 U.S. 651; Wiley v. Sinkler, 179 U.S. 58; Swafford v. Templeton, 185 U.S. 487. Every voter's vote is entitled to be counted once. It must be correctly counted and reported. As stated in United States v. Mosley, 238 U.S. 383, 386, "the right to have one's vote counted" has the same dignity as "the right to put a ballot in a box."

10 refers to voting in terms recognizing its character as speech.3 As stated by Justice Alito in his concurring opinion in Nevada Commission on Ethics v. Carrigan, 564 U.S. 117, 133 (2011),

“Voting has an expressive component in and of itself.”

“[T]he individual person's right to speak includes the right to speak in association with other individual persons.” Citizens United, 558 U.S. at 391-392 (concurring opinion of Justice

Scalia, emphasis in original). An election is exactly that, “speak[ing] in association with other individual persons.” “[F]reedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the 'liberty' assured by the Due Process Clause of the Fourteenth

Amendment, which embraces freedom of speech." NAACP v. Alabama ex rel. Patterson, 357 U.S.

449, 460 (1958).

Political parties are associations whose rights may not be violated by state election laws.

Tashjian v. Republican Party, 479 U.S. 208, 225 (1986)(closed party system violated party’s First

Amendment rights.). “The right to associate with the political party of one's choice is an integral part of this basic constitutional freedom." Kusper v. Pontikes, 414 U. S. 51, 56-57 (1973). In

Kusper, this Court described the right to vote as a significant component of an individual’s right of association. Kusper, 414 U.S. at 58 (1973)(preventing voter from voting in party primary

“deprived her of any voice in choosing the party's candidates, and thus substantially abridged her ability to associate effectively with the party of her choice.”);

The associational interests of national parties and those of their voters cross state lines in a national election. Every voter has associational interests , not only in electing electors in their own states, but also with every like-minded voter in every other state. Both plurality and minority

3 See, e.g., cases collected in Armand Derfner and J. Gerald Hebert, Voting is Speech, 34 YALE LAW & POLICY REVIEW 471, 486 n.(6/28/2016).

11 voters in each state are affected by and hope to associate with plurality and minority voters in other states. A presidential candidate simply cannot be elected without this kind of association.

Once the state has chosen a popular election to be the manner of appointment of

Presidential electors, it must accord the voters all the protections required by the United States

Constitution. In Doe v. Reed, 561 U.S. 186, 195 (2010), the Court found signing a petition in connection with a referendum procedure to be political expression subject to First Amendment protections, though it was also effective legal action, as is voting. Chief Justice Roberts stated in language entirely appropriate to the States’ determination to put the decision regarding identity of the electors into the hands of the people:

The State, having “cho[sen] to tap the energy and the legitimizing power of the democratic process, . . . must accord the participants in that process the First Amendment rights that attach to their roles.”

Id . (citing Republican Party of Minn. v. White, 536 U.S. 765, 788 (2002).

Articles I and II do not exempt state legislatures from the requirement to comply with these constitutional provisions.

C. State Court Review of Election Law

1. State Courts Have the Authority to Determine the Constitutionality of State Legislative Enactments Regarding Elections and to Devise Remedies when Necessary

It is the role of courts to state, when asked, whether or not legislative enactments are constitutional. If they are not, it is the role of courts to devise a remedy. Marbury v. Madison, 5

U.S. 137, 177 (1803). “It is emphatically the province and duty of the judicial department to say what the law is.”

It is emphatically the province and duty of the judicial department

to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If then the courts are to regard the constitution; and the constitution is superior to any ordinary act of the legislature; the constitution, and not such ordinary act, must govern the case to which they both apply.

There is nothing in the assignment of legislative authority over elections in Articles I and

II that lessens this judicial duty of state courts. Neither Bush v. Gore, 531 US 98, (2000) nor

McPherson v. Blacker, 146 U.S. 1 (1892) contradict these principles.

The Bush casses, of course, dealth with court action after the election, not with an effort to ensure exericse of the franchis before the election. They do not provide support for invalidating the Pennsylvania Seuprem Court’s action in this case. The per curiam opinion in

Bush v. Gore did not address the issue of court authoirty vis a vis the legislature per se, but held that the Florida Suprem Court’s remedy violated the equal protection rights of Florida voters.

Bush v. Gore, 531 U.S. at 103. The concurring opinion of three justices, written by then Chief

Justice Rehnquist, was concerned that the Florida court’s actions were so contrary to the legislative scheme as to disregard the authority of the Secretary of State who was charged with running elections and to “wholly changethe staturorily provided responsibility amog these various bodies.” Bush v. Gore, 531 U.S. at 113-114. The concurrence was also concerned that the Florida Court’s action created a real risk of disenfanchising Florida voters by delaying the counting past federally mandated time limits for certifying the popular vote. Id. at 120-122.

None of these concerns arise in this case, in which the Pennsylvania Court, expressing deference and trying to accommodate the Secretary, determined it was reasonable, before the election, to permit absentee voters to vote on Election Day to avoid a risk of disenfranchisment of absentee voters which had in fact occurred earlier in the year.

McPherson v. Blacker, 146 U.S. 1 (1892) also presents no support for review of the

Pennsylvania Supreme Court’s interpretation of the state’s constitution merely because the subject matter is election law. A conflict between state legislative and state judicial power simply was not an issue in McPherson, which upheld the lower court’s determination that the legislature had authority to create a district-based electoral voting plan, over a challenge that a general ticket plan was required by Article II.

While it is true that McPherson identifies that the Article II duty to select the manner of appointment is “conferred upon the legislatures of the States,” the McPherson court also uses language that equates the “legislative” power with the power of the “State” generally, and specifically acknowledges that such power exists “as limited by the constitution of the State.”

"A State in the ordinary sense of the Constitution," said Chief Justice Chase, Texas v. White, 7 Wall. 700, 721, "is a political community of free citizens, occupying a territory of defined boundaries, and organized under a government sanctioned and limited by a written constitution, and established by the consent of the governed." The State does not act by its people in their collective capacity, but through such political agencies as are duly constituted and established. The legislative power is the supreme authority except as limited by the constitution of the State, and the sovereignty of the people is exercised through their representatives in the legislature unless by the fundamental law power is elsewhere reposed. The Constitution of the United States frequently refers to the State as a political community, and also in terms to the people of the several States and the citizens of each State. What is forbidden or required to be done by a State is forbidden or required of the legislative power under state constitutions as they exist. The clause under consideration does not read that the people or the

citizens shall appoint, but that "each State shall"; and if the words "in such manner as the legislature thereof may direct," had been omitted, it would seem that the legislative power of appointment could not have been successfully questioned in the absence of any provision in the state constitution in that regard. Hence the insertion of those words, while operating as a limitation upon the State in respect of any attempt to circumscribe the legislative power, cannot be held to operate as a limitation on that power itself.

McPherson v. Blacker, 146 U.S. at 25 (1892).

2. The Standard of Review

Resolution of constitutional challenges to State action regarding the right to vote for electors requires weighing of the State’s interest in action for governmental purposes against the liberty its action abridges. Anderson v. Celebrezze, 460 U.S. 780, 789 (1983), sets out the generic weighing process that is required:

[The Court] must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests, it also must consider the extent to which those interests make it necessary to burden the plaintiff's rights.

When state action affects First Amendment rights, strict scrutiny of the state’s action is required, and the states must prove a compelling interest for any abridgment.

[P]olitical speech must prevail against laws that would suppress it, whether by design or inadvertence. Laws that burden political speech are subject to strict scrutiny, which requires the Government to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest.

Citizens United v. Federal Election Commission, 558 U.S. 310, 340 (2010) (internal quotation marks and citations omitted).

Associational interests protected by the First Amendment are also explicitly entitled to strict scrutiny review:

Even though legitimate, the "'subordinating interest of the State must be compelling' . . ." to justify the injunction's abridgment of the exercise by petitioners and the National Democratic Party of their constitutionally protected rights of association.

Cousins v. Wigoda, 419 U.S. 477, 489 (1975), citing NAACP v. Alabama, 357 U.S. 449, 463

(1958.) Even when the state has a legitimate interest, the infringement must be necessary and tailored to that interest.

As our past decisions have made clear, a significant encroachment upon associational freedom cannot be justified upon a mere showing of a legitimate state interest. Bates v. Little Rock, supra, at 524; NAACP v. Alabama, supra, at 463. For even when pursuing a legitimate interest, a State may not choose means that unnecessarily restrict constitutionally protected liberty. Dunn v. Blumstein, 405 U.S., at 343. "Precision of regulation must be the touchstone in an area so closely touching our most precious freedoms." NAACP v. Button, 371 U.S., at 438. If the State has open to it a less drastic way of satisfying its legitimate interests, it may not choose a legislative scheme that broadly stifles the exercise of fundamental personal liberties. Shelton v. Tucker, 364 U.S. 479, 488.

Kusper, 414 U.S. at 58-59.

The most deferential standard of review, outlined in Burdick v. Takushi, 504 U.S. 428,

434 (1992) permits a court to uphold state law which “imposes only reasonable, nondiscriminatory restrictions,” finding that in those circumstances “the State’s important regulatory inters are generally sufficient to justify the restrictions.” (Internal quotation marks omitted, citing Anderson v. Celebrezze 460 U.S. 780, 788 (1983).

In the context of a national election, the state’s interest is less than in a purely state contest. As stated in Anderson, 460 U.S. at 794-795:

Furthermore, in the context of a Presidential election, state-imposed restrictions implicate a uniquely important national interest. For the President and the Vice President of the United States are the only elected officials who represent all the voters in the Nation. Moreover, the impact of the votes cast in each State is affected by the votes cast for the various candidates in other States. Thus in a Presidential election a State's enforcement of more stringent ballot access requirements, including filing deadlines, has an impact beyond its own borders. Similarly, the State has a less important interest in regulating Presidential elections than statewide or local elections, because the outcome of the former will be largely determined by voters beyond the State's boundaries. This Court, striking down a state statute unduly restricting the choices made by a major party's Presidential nominating convention, observed that such conventions serve "the pervasive national interest in the selection of candidates for national office, and this national interest is greater than any interest of an individual State." Cousins v. Wigoda, 419 U.S. 477, 490 (1975). The Ohio filing deadline challenged in this case does more than burden the associational rights of independent voters and candidates. It places a significant state-imposed restriction on a nationwide electoral process.

(Internal footnotes omitted.)

Under these legal precepts, the Pennsylvania legislature’s demand that absentee voters vote before Election Day is subject to strict scrutiny.

D. The Pennsylvania Court Acted Within Its Authority

The Pennsylvania Supreme Court acted in accordance with its authority in protecting the franchise of the Pennsylvania voters to the best of its ability in the circumstances of the 2020 pandemic. It did so in accordance with input from and largely in accordance with the wishes of the Secretary of the Commonwealth of Pennsylvania, charged by the legislature with the authority for managing the mechanics of the election. “The Secretary specifically asks that this Court order an extension of the deadline to allow the counting of any ballot postmarked by Election Day and received on or before the third day after Election Day, which is November 6, 2020.” Pennsylvania

Democratic Party v. Boockvar, 238 A.3d 345 (2020), 133 MM 2020 at p. 27. The Secretary also specifically asked for the challenged ruling regarding postmarks. Id. at n.20.

The Court’s ruling was consistent with the intent of the legislature expressed in other laws, including the expanded absentee ballot provisions of ACT 77 themselves, and the current

“accommod[ation] of the receipt of certain ballots after Election Day” under 25 Pa.C.S.§3511

(military and overseas voters), 133 MM 2020 at p.37-38. It was consistent with legislative delegations of authority over election issues in even more specific logistical contexts, 25 P.S.

§3046 (authority to address issues arising on the day of election), 133 MM 2020 at p.21.

It was entirely reasonable for the Pennsylvania State Court to devise a remedy itself, rather than returning the determination to the State Legislature. The election was coming up quickly, and the executive in charge had proposed a reasonable remedy. The legislature’s position was clear. Moreover, it had enacted a non-severability clause, which could invalidate every single absentee vote, based on a legitimate constitutional challenge to the ballots’ due date.4

The decision was well within the republican duties of the state court, devising a temporary remedy to protect the franchise of state voters in what the court perceived to be an emergency.5 It must be upheld as a valid exercise of state judicial authority.

4 The non-severability provision is itself a repudiation of republican principles. What else other than a decision such as that challenged here, or a horrific social disaster justifying the intervention of the executive branch, could activate the non-severability clause? To disenfranchise thousands and thousands of absentee voters in either of those situations shows a dismaying disregard for the people of Pennsylvania.

5 “We have no hesitation in concluding that the ongoing COVID-19 pandemic equates to a natural disaster.” 133 MM 2020 at p. 35.

The Republican Party asks this Court to find that it violates the law requiring a uniform

Election Day to permit absentee voters to vote on Election Day. This finding would require the

Court to define Election Day differently than it has been defined by federal law and state practice. It would require the Court to draw a substantive distinction in the quality of the right to vote to be made between absentee voters and others.

Federal law does not preempt state court determinations regarding receipt of election ballots, but permits states to count ballots cast on Election Day but received thereafter.

Preemption only applies when there is an express or implied conflict between federal and state law, or the federal government has so occupied a field as to leave no room for state legislation.

See, e.g. Cipollone v. Liggett Group, 505 U.S. 504, 516 (1992). Preemption analysis "starts with the assumption that the historic police powers of the States [are] not to be superseded by . . .

Federal Act unless that [is] the clear and manifest purpose of Congress." Id. (internal citations omitted.)

The federal government has not defined Election Day to require that absentee ballots be received on that day. Indeed, it is under the auspices of a federal statute, the Federal Uniformed and Overseas Citizens Absentee Voting Act, 52 U.S.C. §20301, et seq., that Pennsylvania permits certain absentee ballots to arrive seven days after Election Day, with or without a legible postmark.6

6 25 Pa.C.S. § 3511: Receipt of voted ballot(a) Delivery governs.--A valid military-overseas ballot cast under section 3509 (relating to timely casting of ballot) shall be counted if it is

The variety of state election laws across the county makes plain that the federal statutes do not operative of themselves to prohibit received-by deadlines after Election day. Twelve states expanded absentee balloting laws in 2020, primarily because many voters were concerned that their health would be at risk if they voted in person. 7 Thirty-two states required that absentee ballots be received either on election day or the day before election day. Receipt dates in other states ranged from three to seventeen days after Election Day. The United

States Congress, which has the authority under Article 1, §4 of the Constitution to step in and regulate federal elections in the states, has not challenged state laws permitting post-election receipt of ballots.

Petitioners cite extensively to the case of Foster v. Love, 522 U.S. 67 (1997). Petition of Republican Party of Pennsylvania, at ps. 30-33. Foster’s statement that “election” means the

“combined actions of voters and officials meant to make a final selection of an officeholder” does not lead to the Petitioner’s conclusion that all votes must be received and counted on

Election Day, a conclusion which is contrary to current election practice in every state. Foster held a Louisiana law unconstitutional because it permitted an election to be finally determined by

delivered by 5 p.m. on the seventh day following the election to the address that the appropriate county election board has specified.(b) Rule regarding postmarks.--If, at the time of completing a military-overseas ballot and balloting materials, the voter has declared under penalty of perjury that the ballot was timely submitted, the ballot may not be rejected on the basis that it has a late postmark, an unreadable postmark or no postmark.

7 The facts stated in this paragraph are taken from the National Conference of State Legislatures: https://www.ncsl.org/research/elections-and-campaigns/absentee-and-mail-voting-policies-in-effect-for- the-2020-election.aspx , accessed November 14, 2020.

20 a primary held about a month before Election Day. The Foster Court specifically declined to state exactly what must be done on Election Day.

While true that there is room for argument about just what may constitute the final act of selection within the meaning of the law, our decision does not turn on any nicety in isolating precisely what acts a State must cause to be done on federal election day (and not before it) in order to satisfy the statute. Without paring the term "election" in § 7 down to the definitional bone, it is enough to resolve this case to say that a contested selection of candidates for a congressional office that is concluded as a matter of law before the federal election day, with no act in law or in fact to take place on the date chosen by Congress, clearly violates § 7.

Foster, 522 U.S. at 72. The language cited from the case by Petitioners does not support any conclusions regarding the meaning of “election” with respect to counting votes after Election

Day.

Noting in the Pennsylvania statute permits a voter to vote after Election Day. Not a single state permits voters to vote after Election Day. States do not require voters other than absentee voters to vote before Election Day so that the vote can be counted on that day.

Approximately forty percent of the states permit ballots to be counted after Election Day provided that they were cast on or before then. The interpretation of Election Day as the day by which votes must be cast, is obvious from these facts. There is neither a federal mandate nor consistent state practice that ballots be received by Election Day before they can be counted.

Similarly, there is no federal law that prescribes how states should determine that a ballot was cast on or before Election Day when it was received thereafter, or how long the State should allow for delivery of the ballots. These are decisions wholly within the state’s jurisdiction.

III. The United States Constitution Requires That Absentee Voters Be Allowed to Cast Their Votes On Election Day.

The Pennsylvania Supreme Court found that the requirement that absentee voters cast their ballots sufficiently in advance of Election Day to meet a receipt deadline of 8:00 p.m. on

Election Day was constitutional, and the Supreme Court has not yet ruled that such an early voting requirement is unconstitutional. Nevertheless, it is unconstitutional under the federal constitutional provisions discussed in Sections I.B and C above, and the Court should take this opportunity to say so.

The issue of federal constitutionality of statutes requiring voting before Election Day is necessarily raised by this case, and was specifically, if cursorily, addressed by the Pennsylvania

Supreme Court, Pennsylvania Democratic Party, et al. v. Boockvar, et al., 238 A.3d 345, *33

(Pa. 2020), 133 MM 2020, at p.33:

Moreover, we are not asked to declare the language facially unconstitutional as there is nothing constitutionally infirm about a deadline of 8:00 p.m. on Election Day for the receipt of ballots. The parties, instead, question whether the application of the statutory language to the facts of the current unprecedented situation results in an as-applied infringement of electors' right to vote.

The issue requires no further factual development to be ripe for determination, and is cognizable for this court on appellate review. See, e.g., Washington et al. v. Confederated Bands and Tribes of the Yakima Indian Nation, 439 U.S. 463, 476 n.20 (1979) (“prevailing party. . . free to defend its judgment on any ground properly raised below whether or not that ground was relied upon, rejected, or even considered. . . .” The Court also noted its ability to determine an “issue . . . implicit in the subjects the parties were requested to address. . . .); United States v. American R.

Express Co., 265 U.S. 425, 435 (1924) (“appellee may. . . urge in support of a decree any matter appearing in the record, although his argument may involve an attack upon the reasoning of the

22 lower court or an insistence upon matter overlooked or ignored by it. (footnote and citations omitted.)) 8

The weighing of interests to analyze the propriety of the restriction on the right to vote on

Election Day, rather than before, requires that the restriction be found unconstitutional under any standard of review. While the voter’s interest in being able to vote on Election Day and not before is substantial and the state’s interest in having absentee ballots delivered by Election Day is minimal, justifying strict scrutiny,9 the restriction cannot even satisfy a rational basis standard.

The voter’s interest in being able to vote on Election Day, rather than before is substantial. An interest in being able to wait until Election Day to vote is hardly the much maligned interest in “making a late rather than an early decision,” which is accorded no significance in many cases including Burdick v. Takushi, 504 U.S. 428, 437 (1992). It is not a question of requesting a ballot at the last minute but of being subject to a different and earlier

Election Day because of requesting a certain type of ballot.

It is clearly an infringement on the right to vote to have to vote earlier than Election Day, in ignorance of the events which will occur in the last few days before Election Day. Such events may be events not particularly related to the elections, or they may constitute platform changes or other information directly connected to the voter’s interest in the election. Certainly a sitting President could, in the few days before Election Day, act in ways that could sway voters.

It is not only the associational rights of the voters that are infringed upon, but those of the parties

8 The Complaint did not specifically challenge the receipt deadline under the federal constitution but did assert a need for a state-wide ruling “because the election will be more efficient, and less subject to challenge on federal Equal Protection grounds, if this issue were to be addressed on a statewide basis.” Complaint at p. 33, ¶105. 9 See discussion of standards of review at Section I.C.2, supra.

23 and the candidates as well: they have the right to the vote of every person who can be persuaded by Election Day.

There is nothing uniform about Election Day, when voters are held accountable for the time of delivery which is neither precisely known, nor within their control. In many other contexts, and indeed in this Court, the time of delivery is not a risk the person using the mail is required to absorb. See, e.g., Supreme Court Rule 29.2. (documents are timely filed if, among other requirements, submitted to post office or carrier on the date due).

Especially in this year of the pandemic, but, by law in many states, the people casting absentee ballots are those who are disabled, those who place themselves at significant health risk by voting in person, such that concerns regarding a suspect class could be identified and a violation of equal protection rights under the Fourteenth Amendment could be alleged. When it is widely understood that the absentee vote will be contrary to the will of the legislative majority, issues of political discrimination are also raised by the disparate treatment of absentee voters.

Regardless of these issues, however, an infringement of due process rights and associational interests clearly arises when voters are required to cast their votes before Election

Day. It is in this context that the federal government may indeed have preempted state authority.

Election Day has been set by the federal government, 2 U.S.C. §1, §7, 3 U.S.C. §1, and the states do not have the authority to advance it, as stated in Foster v Love, 522 U.S. 67 (1997).

The restrictions on absentee voters’ voting rights and First Amendment interests cannot be justified on the ground that the government does not have to permit absentee voting, and has generously expanded the franchise without being required to do so. The government may not violate the Constitution because it voluntarily creates a liberty or property interest. As with the right to vote to select Presidential electors itself, the interest, once created, is subject to the

24 requirements of due process: that the procedures be fairly and consistently implemented and that infringements by the government, including disparate treatment, be justified.

The state has no greater interest in counting votes on Election Day than on a day a few days after Election Day, which is what happens in all states anyway. There is no important regulatory interest in requiring that absentee ballots arrive by Election Day. Of course it is true that setting specific election deadlines is part of managing elections, and that there must be a point at which ballots can no longer be counted. The question is, is it constitutional for those deadlines and that point to be so early that people have to vote before Election Day.

While a state is “permitted to reform one step at a time,” McDonald v. Board of Election

Comm’rs of Chicago, 394 U.S. 802, 807 (1995), it is not permitted to impose unnecessary limitations on the right to vote. There is no need for continued baby steps in the area of mail-in ballots. The “laboratories” of the states that have permitted post-election receipt dates have established that the process is safe and practical. Because the restriction is not necessary to accomplish the valid recording of the preference of the voters and it places a substantial burden on the right to vote, it is unconstitutional.

CONCLUSION

The Petitions for Writ of Certiorari should be denied, as the questions presented must be resolved against the Petitioners.

November 30, 2020 Respectfully submitted,

Helen Randolph Counsel of Record P.O. Box 17416 2043 Wilson Boulevard Arlington, Virginia 22216 302-907-9831

[email protected]

Counsel for Intervenor/Applicants Randolph/Canavan