Pennsylvania’s vote count is a chaotic mess. Pennsylvania’s governor, attorney general, and secretary of state have performed poorly and in highly partisan fashion. But matters are much worse thanks to the Commonwealth’s Supreme Court and Chief Justice Roberts.

Many have noted that the Supreme Court has been consistent this summer and fall in ruling that federal courts cannot, through judicial decree, change duly enacted election laws. In cases involving federal intrusion into state lawmaking power, Chief Justice Roberts, along with fellow conservative Justices Thomas, Alito, Gorsuch, and Kavanaugh, concluded that state statutes control. 

If a state’s law says that absentee ballots need to be received by election day to be counted, federal courts cannot extend this deadline. This not only makes sense but is consistent with the U.S. Constitution, which delegates exclusive authority to state legislatures to establish the rules of the road for presidential elections. Judicial interference with election rules creates confusion and undermines the legitimacy of the will of the people as expressed through the state legislature’s duly enacted laws.

While the other four justices appear to conclude that this principle applies for state courts, the Chief Justice believes otherwise. Chief Justice Roberts distinguished himself from the other justices last week when he refused to consider the Supreme Court of Pennsylvania’s decision to extend the receipt deadline for mailed ballots. This squarely defied an unambiguous statutory deadline. While the Chief thinks it’s okay to stop federal courts from changing election laws, he appears to think state courts are free to do so. 

Roberts is showing deference to state courts in interpretation of their own state laws. Normally, that is a wise approach, but not, as explained here, when the state's law is part of a regulatory framework established by the U.S. Constitution- Article II, Sec. 1. The national interest in a transparent and honest electoral system outweighs any deference owed to a state court blatantly ignoring the clear words of the statute. Why is it unconstitutional for federal courts to overturn legitimate state election laws but constitutional for state courts? 

The Chief Justice’s position is particularly questionable given the fact that the Pennsylvania legislature enacted the mail ballot deadline this past March fully aware of and in response to the Coronavirus pandemic. The General Assembly’s decision is binding under the U.S. Constitution and may not legally be ignored by any state official or court. But as the Pennsylvania Supreme Court has violated the U.S. Constitution by overruling the will of the Pennsylvania legislature (and the will of the People of Pennsylvania), the U.S. Supreme Court may have to step in after the fact as it should have done prior to the election.

The post-election chaos is unfolding as we predicted. In addition to the dispute over votes received after the statutory deadline, President Trump has presented legitimate evidence of voting irregularity claims in Pennsylvania:

• Direction from the Secretary of State that election officials in traditionally Democratic counties — in contravention of state law — cure defective absentee ballots, but no such direction to officials in Republican Counties.
• Deceased individuals voting.
• Election officials pressuring voters to cast ballots for Democratic candidates.
• Obstruction of voting observers from meaningful examination of process.

Similar claims, supported by affidavits, undergird Trump campaign lawsuits in Nevada, Wisconsin, Michigan, and Georgia. These are legitimate claims that must be evaluated by Pennsylvania’s courts. Should the resolution of these cases lead to an outcome within the number of votes arriving after the statutory deadline, the U.S. Supreme Court will be left deciding the outcome of the race.

Chief Justice Roberts’ failure to act prior to the election feeds into Democrat accusations that the Supreme Court will give the election to President Trump. Justice Amy Coney Barrett is needlessly and perfectly set up to fuel the left’s conspiracy theory that she was put on the Court to make sure Trump wins. This is a fiasco.

But let’s be clear: If the Supreme Court accepts this case (which is likely given Justice Alito’s strong recommendation that Pennsylvania segregate late arriving ballots), and a majority rules that the Pennsylvania Supreme Court violated the U.S. Constitution, the Supreme Court is not “deciding” the outcome of the election. It is deciding whether the Constitution allows courts to set aside duly enacted legislative rules for selecting presidential electors. That authority rests exclusively with state legislatures and in our view must be respected.

The Supreme Court should have dealt with the Pennsylvania matter weeks ago. Still, it is not too late. However, it is too late for Chief Justice Roberts to save the Court in general, and Justice Barrett in particular, from looking like political partisans.  

Pete Hutchison is president of the Landmark Legal Foundation.

Michael O’Neill is assistant general counsel of the Landmark Legal Foundation.