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The Election for Pennsylvania’s High Court

The Pennsylvania Judicial Center in Harrisburg, Pa.


Julio Cortez/Associated Press

After Pennsylvania’s 2020 election mess, the state Supreme Court needs an injection of judicial restraint, and Judge

Kevin Brobson

wants to deliver the first dose. The Nov. 2 ballot includes a partisan election for an open seat on the high court. Judge Brobson, who sits on an appeals bench a step lower, is the GOP nominee. His website says he’ll defend “the law as it is written.”

That’s exactly what the state’s Supreme Court did not do last year. State law clearly says mail ballots must be received by 8 p.m. on Election Day. Yet two months before the vote, a 4-3 majority conjured a Covid-19 exception: Mail ballots that arrived three days late would be valid, even without a postmark.

The majority justified this move by citing the state Constitution’s vague promise of “free and equal” elections. Yet it frankly admitted: “There is no ambiguity regarding the deadline set by the General Assembly.” That should have been the final analysis, but instead the ruling brazenly rewrote the law. Republicans appealed to the U.S. Supreme Court, which split 4-4 after the death of

Ruth Bader Ginsburg.

Soon after the election, Justice

Samuel Alito

ordered Pennsylvania to keep the tardy ballots “segregated” and “counted separately,” in case they were ruled illegal. The state received 10,097 of them, 669 without legible postmarks. These votes aren’t reflected in the state’s official presidential results, and we don’t know how they broke. Pennsylvania’s overall mail ballots went 77% for President Biden.

This didn’t matter because Mr. Biden won the state by 80,555, but the country is lucky the election wasn’t closer. If the election had hung on a few thousand Pennsylvanians, the next President might have been picked by the U.S. Supreme Court. Were late ballots legal, for a Biden victory? Were they illegal, for a second

Donald Trump

term? Either way, political hell would have broken loose.

The U.S. Supreme Court could have rebuked Pennsylvania once Mr. Biden was safely sworn in. It ducked the case, with three dissents. “The decision to leave election law hidden beneath a shroud of doubt is baffling,” Justice

Clarence Thomas

said. The danger is that state jurists might feel free to ignore the law whenever the next voting controversy arises.

In 2018 the Pennsylvania Supreme Court threw out the state’s congressional map as tilted to the GOP. The majority cited that same fuzzy clause on “free and equal” elections. In doing so, the court rejected a recommendation from . . . Judge Brobson. In his view, the map’s challengers hadn’t “articulated a judicially manageable standard” or proved any plain violation of the state Constitution. “For the judiciary,” he wrote, “this should be the end of the inquiry.”

Or consider Pennsylvania’s other mail-vote fiasco last year. A state Senate election turned on some 300 absentee ballots that voters didn’t date. The law unambiguously says voters must “fill out, date and sign,” yet the state Supreme Court said the ballots should be counted, in a one-time exception for 2020. Earlier in the case, Judge Brobson had ruled the opposite. “To remove the date requirement,” he wrote, “would constitute a judicial rewrite of the statute.”

Democrats have a 5-2 majority on the Pennsylvania Supreme Court, and the retiring Justice is a Republican, so a Justice Brobson wouldn’t alter the court’s balance. But if voters in a purple state can push him over the top, it would send a signal of disapproval for judges who rewrite black-letter election law.

Wonder Land: Justices Stephen Breyer and Amy Coney Barrett share at least one opinion: The Supreme Court is in trouble. Images: Pool/AFP/Getty Images Composite: Mark Kelly

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Appeared in the October 25, 2021, print edition.


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