In a presidential election, how does a state decide how to award its electoral votes?  The Constitution provides a clear answer in the second clause of Article II, Section 1:

Each State shall appoint, in such manner as the Legislature thereof may direct, a Number of Electors equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress; . . .

The Pennsylvania legislature has directed that the electors are to be chosen by the registered voters of the Commonwealth.  Voters may cast a ballot at a polling place or may mail a ballot.  In-person votes and mailed ballots must be received by 8:00 p.m. on election day, the first Tuesday after the first Monday in November.

The Pennsylvania Supreme Court was invited to extend the deadline in light of the coronavirus pandemic.  They replaced the rules duly adopted by the legislature and granted the voters three additional days to return ballots.

The United States Supreme Court voted 4-4 to let that decision stand.  Despite what the Constitution says, the electors in Pennsylvania will not be chosen as the legislature directs.  They will be chosen as the courts of Pennsylvania direct.

This decision invites mischief.  For example, there was a well-known senator from one of the fine states in the upper Midwest.  He always won close elections.  Several counties in the state were intensely loyal to him.  They always made sure to report their vote totals after the other counties had provided their numbers.  Cynics said that the loyal counties waited to find out how many votes they needed to produce before completing and certifying their counts.

That same drama has been known to play out in other states where the big cities tend to vote for Democrats and the smaller towns and rural areas tend to vote for Republicans (while the suburbs flip a coin or use one of those magic 8-balls).  As soon as one side commits to a count in its districts, the other knows what it has to do to secure a win.

In pre-COVID days, one counterweight to this corrupt battle of wits was that both sides had to work against time.  Once the target vote count was known, the remaining vote had to be certified within a matter of hours.  That system started to break down in California in 2018, when late arriving votes gathered by private citizens, sometimes called “ballot harvesters”, flipped several House seats after the election appeared to be over.

In Pennsylvania in 2020, the initial count will be known on November 3.  That will give the side that’s behind three full days to produce late arriving ballots.  The deadline that the Pennsylvania Legislature imposed was likely designed to discourage if not prevent these tactics.

If anyone in Pennsylvania thought that the deadline should be extended, why didn’t they go to the Legislature to get the law changed?  Perhaps because the method they chose saved a lot of time and effort.

It’s a terrible decision both in its result and because it takes power away from the institution that had the right to exercise it under the Constitution and arbitrarily transfers that power somewhere else.

How did the justices reach their decision?  We don’t know, because they let the Pennsylvania decision stand without comment.  The following is pure speculation.

Breyer: Why is everybody so technical? When the Constitution says Legislature, that must be shorthand for “the law-making authority of the State”.  As our system has evolved, courts have become the law-making authority of the State.  So, “Legislature” means “Courts”.

Sotomayor: I feel great empathy for people who cannot get their ballots in before an artificial deadline imposed by heartless people, mostly old white males, who fail to take account of how difficult it is for poor people to deal with this virus that Donald Trump has visited on them.

Kagan: The Pennsylvania Supreme Court was duly elected.  They reflect the will of the People.  I’m going with them.

Alito: “Legislature” means Legislature.  They acted.  That’s the law.

Thomas: “Legislature” means Legislature.  They acted.  That’s the law.

Kavanaugh: “Legislature” means Legislature.  They acted.  That’s the law.

Gorsuch: “Legislature” might mean different things in different contexts.  In this case and in light of the particular issue in front of the Court, the balance of evidence is that “Legislature” means the legislature of the Commonwealth of Pennsylvania.  I am open to further evidence either way should it be produced and presented in an appropriate manner. However, we are not authorized to speculate on what that evidence might look like until it is presented.

Roberts: I don’t like it when Senator Schumer and all those other senators get mad at me.  I think – I hope – I know what they want.  I’ll do that and hope I got it right.  I don’t want to hear President Biden yelling at me at the next State of the Union speech with all those angry politicians yelling and razzing me like I did something wrong.  One experience like that was enough to last for a lifetime appointment.

Remember to vote if you haven’t already.  Of course, if you live in Pennsylvania, you’ve got all week.  If you live somewhere else, check with your local court.  They will have the most up-to-date rules.