Missouri AG Schmitt backs suit against Pennsylvania mail ballots. Here’s why it matters
A Republican-led lawsuit in Pennsylvania seeking to invalidate mail-in ballots that arrived after Election Day won’t change President-elect Joe Biden’s victory.
But Missouri Attorney General Eric Schmitt is getting behind the legal challenge—electoral math notwithstanding.
Schmitt and nine other Republican state attorneys general filed a brief Monday in support of the Pennsylvania Republican Party’s lawsuit. Though Biden’s victory isn’t in doubt, the U.S. Supreme Court could ultimately rule on the case, which is viewed as dangerous by election law experts and voting rights advocates.
Schmitt’s brief is the latest example of his interest in championing high-profile, conservative legal causes. He has continued Missouri’s involvement in a lawsuit that seeks to topple the Affordable Care Act, with Supreme Court oral arguments in the case set for Tuesday. He is also engaged in a quixotic suit against the Chinese government over damage caused by the COVID-19 pandemic.
The latest effort calls into question whether state courts or lawmakers have final say over rules for federal elections. Conservatives hope the Supreme Court will give Republican-controlled legislatures a freer hand to set limits, shielding them from more liberal state courts likely to second-guess their decisions.
“What the petitioners are asking for in this case is for the Supreme Court to interpret the U.S. Constitution in a way that no court has ever done, including the Supreme Court,” said Eliza Sweren-Becker, counsel for the voting rights and elections team at New York University’s Brennan Center for Justice.
The court hasn’t announced whether it will take the case. But Justice Samuel Alito on Friday ordered Pennsylvania election boards to follow previous state guidance to segregate mail ballots received after election day—a decision that ensures the ballots could ultimately be deducted from vote totals if they are thrown out.
Pennsylvania Republicans are seeking to overturn a decision by the state Supreme Court to count mail-in ballots arriving up to three days after Election Day. Several thousand ballots are at stake, though the Pennsylvania secretary of state previously told CNN there weren’t enough to change the outcome of the race, “unless it is super close.” Biden’s lead stood at roughly 45,400 votes on Monday afternoon.
Republicans allege that accepting the mail-in ballots violates federal law by illegally extending the date of the presidential election. They contend the state supreme court opinion allows late ballots to be counted even if they lack postmarks showing they were cast on or before Tuesday.
The GOP also argues that the decision is at odds with the U.S. Constitution, which gives legislatures the authority to regulate elections, rather than the courts. The Pennsylvania Supreme Court “substituted its will for the will” of the state legislature, they contend.
Schmitt’s brief echoes those arguments while emphasizing the risk of mail-in ballot fraud, though election experts say there’s no evidence of widespread fraud. The brief says the Pennsylvania court’s decision “enhanced opportunities for fraud” and provided a window of time where people with ill-intent could attempt to influence the outcome.
“The integrity of our elections are at stake, people having full faith that their vote counts and that it’s not diluted by illegal votes,” Schmitt said at a news conference organized by the Republican Attorneys General Association.
The brief cites seven episodes of mail or absentee voter fraud, including two in Missouri. The brief notes the 2019 indictment of Berkeley, Mo., Mayor Ted Hoskins on allegations that he tampered with absentee ballots in a 2018 election. It also references a 2016 state house race in St. Louis where a judge ordered a new election after absentee ballot irregularities were found.
Neighboring Kansas, which has allowed no-excuse absentee voting since the 1990s and has actively promoted mail voting, has seen no signs of widespread voter fraud. That’s despite intense efforts by Republican Kris Kobach to find and prosecute wrongdoing during his time as secretary of state. A federal judge ultimately found little evidence of fraud.
Schmitt also said the constitution is “very clear” that state legislatures get to set rules for elections. His brief says states “have a strong interest in preserving the proper roles of state legislatures and state courts” in federal elections in order to safeguard individual liberty.
“We think that this is a very important case, not just for this election, but beyond, that the legislatures have the ability to continue to set those time, place and manner restrictions,” Schmitt said.
Mark Johnson, a Kansas City-area attorney who has previously challenged voter registration restrictions in Kansas, said the case could potentially result in only state lawmakers “being allowed to say anything about how elections are run.”
Past regulations set by secretaries of state on how to conduct elections could be invalidated. Legislatures would potentially have to pass new laws setting election rules.
“There’s some implications that are broader than what I think a lot of people realize,” Johnson said.
Sweren-Becker said the Republicans’ argument goes against how elections are conducted in numerous states that allow mail ballots to arrive after Election Day. Twenty-three states accept ballots after Election Day as long as officials verify they were cast on or before Election Day, according to the Brennan Center.
Kansas allowed ballots postmarked on or before Tuesday to count if they arrived by Friday. Missouri counts military ballots that arrive by the Friday following the election.
“If it’s good enough for our military, then I don’t see why it’s not good enough for other voters as well,” Sweren-Becker said.
Schmitt’s support for the Pennsylvania lawsuit comes after Missouri lawmakers temporarily expanded mail-in voting amid the pandemic. The legislature created a two-tiered system with separate requirements for absentee ballots and mail ballots that allowed any voter to vote by mail, but required many to have their ballot notarized.
Missouri Secretary of State Jay Ashcroft, a Republican who opposes expanded mail-in voting, said in a statement that state legislatures write the law.
“As I’ve said before, the courts should not be changing election law in the middle of the process of an election,” Ashcroft said.
Kansas Attorney General Derek Schmidt, a Republican, on Monday evening announced he had signed on to a separate amicus brief that also asks the Supreme Court to take up the Pennsylvania lawsuit.
This story was originally published November 9, 2020 at 5:10 PM.
