Thread by @questauthority, THREAD: Why there's (STILL) no reason to panic over Pennsylvania and why [...]

THREAD:
Why there's (STILL) no reason to panic over Pennsylvania and why the "mic drop" court opinion that came out yesterday won't change anything.

I'm going to keep this brief, and I'm not doing an in-depth walkthrough of the opinion itself.

https://www.marklevinshow.com/wp-content/uploads/sites/301/2020/11/Memorandum-Opinion-Filed.pdf

There are two reasons for that.
One is that I'm reluctant to do deep dives into state court cases dealing with state law - at least for the 49 states where I'm not licensed - without doing a lot of research. And I don't have time for that now.

The other is that the opinion changes nothing, and there's little reason to think that it will be upheld by the PA Supreme Court. So I'm not seeing much reason for a line-by-line analysis.

But I can try and explain why I'm so unconcerned.

Let's start with what the document is: it's an opinion drafted by the judge who issued the injunction on Wednesday explaining why the injunction was issued.

This doesn't do anything new or change anything. It simply gives reasons for something that's already happened.

This means that the status quo remains the same. The order has been appealed to the PA Supreme Court, and because it has been appealed it has also been automatically stayed - so it's not in effect.

The State of Pennsylvania has asked the PA Supreme Court to take "extraordinary jurisdiction" over the case, and given their willingness to do so in many other election challenges this cycle, I would be quite surprised if they didn't.

Also, the main issue in this case is a legal one only - there are no disputed facts - so it's one that's reasonably appropriate for state supreme court review. (This is not true for the various "original jurisdiction" petitions being tossed around in swing states this week.)

So while Judge McCollough has given her reasons for this case, I suspect that this is probably her last word in the case. I think it will be decided by the PA Supreme Court.

I'm not a PA lawyer, but the decision there is probably going to turn on the question of whether the state had the right to authorize mail-in voting under the state constitution.

I think the argument there is pretty clearly yes, but I'll give you the other side's argument first.

They are claiming that Article VII §14 of the PA constitution provides the *only* circumstances where absentee voting is permitted, and don't include "everyone for any reason."

They claim that "offer to vote" in §1 requires an in-person appearance.

They want the remedy for this to be to exclude all mail-in votes and certify the results based only on in-person votes.

Judge McCullough seems to feel that this has merit, at least on first look. (Remember, this is a *preliminary* decision, not one based on full argument.)

And, in fairness, there are a few old (one is 1862) cases that they can point to for things like "offer to vote" being in-person and for those not listed in §14 not being authorized, without further amendment, to vote absentee.

The reason their argument is unlikely to fly at the PA S.Ct is that there's a fundamental difference between absentee and normal voting - absentee is designed to deal not with voters who are absent from the polling place per say but with those who are absent from the *district.*

I pulled that argument from the same cases that they'd be using to support their argument.

And the stuff about "offer to vote" being in-person? That's dicta in the case it comes from, and the reasons given for the importance of in-person appearance in 1862 don't apply now.

Meanwhile, Article VII §4 says that "elections by the citizens shall be by ballot or by such other method as may be prescribed by law: Provided, That secrecy in voting be preserved."

So in order to win, the Plaintiffs need to convince the PA State Supreme Court that "offer to vote" in §1 must be read as restricted to a physical appearance, and that this restriction (which doesn't appear in the text itself) limits the "methods as may be prescribed by law."

That's not a compelling argument to me. Clearly Judge McCullough thinks otherwise. We'll have to see what the PA Supremes say, but I'd be shocked if they find mail-in to be unconstitutional.

And that's before we get to the question of whether the case should be barred by laches (meaning that it's unfair to let them bring this challenge so late). And the question of whether the remedy can be to throw out lots of legal votes.

Remember - they want to discard *all* mail-in votes, but many of those people would likely have qualified to vote absentee under those provisions. So that's an issue as well.

My expectation is that this case dies at the PA Supreme Court, probably sometime mid- to late- next week.

If it does die there, an appeal to SCOTUS is very very unlikely to work.

SCOTUS doesn't generally get to weigh in on a state court interpretation of state law unless federal issues are implicated. There's no real way to argue that the mail-in voting extension itself violates due process or equal protection.

The attempts Rudy and others have made to argue those theories have all been based on implementation, not on the law itself. And (for reasons I won't get to here) pretty much have to be.

And they can't claim that this violates the Elections or Electors clauses - it's a law properly enacted by the state legislature. (Under the theory that Republicans are using in the other cases, the DEMOCRATS could bring such an appeal if the PA SCt somehow ruled against them.)

So once this dies at the PA SCt, it's pretty much dead.

And if it doesn't die on the merits, the odds of the remedy being upheld for this election are - given the due process and equal protection concerns - also minimal.

Hope that helps reassure y'all some.

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