I’ve written twice thus far on the setting by Justice Alito of a deadline for the Pennsylvania state defendants to file their response to the Emergency Application for Injunctive relief filed by GOP Congressman Mike Kelly and other Plaintiffs. The Plaintiffs are seeking Supreme Court review of the dismissal of their complaint by the Penn. Supreme Court seeking to declare all “no excuse” mailed in ballots for the November 3 election to be invalid based on the claim that the Pennsylvania statute adopting that voting scheme violated a provision of the Pennsylvania State Constitution.
This type of application, because the case is not yet pending before the full Court, is directed initially to the individual Justice who is assigned to receive these types of emergency motions and applications from particular lower Circuit Courts and State Courts. Justice Samuel Alito receives such motions and applications from decisions out of the Supreme Court of Pennsylvania. On December 3 he set December 9 at 5:00 pm as the deadline for the state defendants to file their opposition. As noted, I have written about the possible implications of that date twice previously.
Early Sunday morning the Supreme Court docket for this case was updated, and the deadline for the response from the state defendants was moved up to 9:00 am on December 8. No explanation was provided.
As my two prior articles explain, December 8 is a noteworthy date as that is six days prior to the meeting of the Electoral College. A statute passed by Congress states that if a State has resolved all disputes over its elections, certifies the results, and names Electors on or before that day, that determination “shall be conclusive, and shall govern in the counting of the electoral votes as provided in the Constitution, and as hereinafter regulated, so far as the ascertainment of the electors appointed by such State is concerned.” Title 3, USC, Sec. 5.
What can be made of the fact that Justice Alito now wants the state defendant’s response into the Court with a full day remaining for the Court to take action?
On the one had it could be rationalized that Justice Alito — and likely other members of the Court — want the views of both parties to be reflected in the record before it takes action, whatever that action may be.
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Keep in mind that Justice Alito could simply deny the injunctive relief on his own, without seeking the response of the state defendants. That is an option he seems to have rejected. If he was persuaded that the application of the doctrine of “laches” by the Penn. Supreme Court was appropriate, or that only issues of state law were presented in the matter, the correct action for him to have taken would have been to simply deny the Emergency Application.
He has not done so.
As I surmised yesterday in my alternative theory, I suspect most/all Justices are already at work drafting legal memoranda and/or draft opinions with regard to their views as to what the outcome should be on at least the Emergency Application, if not the actual merits of the underlying matter itself.
What I suspect has prompted the change in the response deadline is that one or more other Justices sees a point of significance with regard to what day the Court acts, whether that be on December 8 or December 9.
At this point I have not had a chance to look closely enough at the interplay of the dates with the legal issues involving the election in general and the allegations of the Kelly complaint in particular. But I’m confident that the issue of what remedy might be afforded to a prevailing plaintiff in a post-election challenge to the validity of ballots cast in Pennsylvania has been studied by one or more Justices’ Chambers.
Justice Alito was certainly concerned about available “remedies” when he ordered that any “late” mailed-in ballots be segregated from other ballots while the Court considers the Penn. Supreme Court’s extension of the statutory deadline for receipt of mailed-in ballots.
The alteration of the response date seems to suggest that the Court will take whatever action it is going to take on December 8, and doing so on December 8 is important to the determination of the matter by at least one Justice. Accommodating that Justice’s anticipated vote would explain why Justice Alito felt compelled to make the change on a Sunday morning.