[Let me begin by apologizing for being so inconsistent in my spelling of zugzwang (or zugswang). Both are acceptable, but I should pick one, and I’m picking zugzswang, because it will score more points in Scrabble. I will eventually go back and change the many “zugswangs” in previous posts.]
A Pennsylvania state court judge yesterday issued a preliminary injunction preventing Pennsylvania from taking any further steps to certify the election, including the assignment of 20 electoral votes to Joe Biden,pending further court hearings and rulings. The ruling upholds an injunction from earlier in the week.
The opinion is here. The issue is whether legislative expansion of absentee balloting to universal mail-in balloting violated the Pennsylvania Constitution. (It sure looks like it to me.) The petitioners seek to preclude the Secretary of State from transmitting the certification or otherwise perfecting the electoral college selections.
Here is the judge’s description of the claim:
In the Petition, Petitioners allege that the Act of October 31, 2019, P.L. 552, No. 77 (Act 77), which added and amended various absentee and mail-in voting provisions in the Pennsylvania Election Code (Election Code),1 is unconstitutional and void ab initio because it purportedly contravenes the requirements of the Pennsylvania Constitution. Petitioners allege that Article VII, section 14 of the Pennsylvania Constitution provides two exclusive mechanisms by which a qualified elector may cast his or her vote in an election: (1) by submitting his or her vote in propria persona at the polling place on election day; and (2) by submitting an absentee ballot, but only if the qualified voter satisfies the conditions precedent to meet the requirements of one of the four, limited exclusive circumstances under which absentee voting is authorized under the Pennsylvania constitution. (Petition, ¶16.) Petitioners allege that mail-in voting in the form implemented through Act 77 is an attempt by the legislature to fundamentally overhaul the Pennsylvania voting system and permit universal, no-excuse, mail-in voting absent any constitutional authority. Id., ¶17. Petitioners argue that in order to amend the Constitution, mandatory procedural requirements must be strictly followed. Specifically, pursuant to Article XI, Section 1, a proposed constitutional amendment must be approved by a majority vote of the members of both the Pennsylvania House of Representatives and Senate in two consecutive legislative sessions, then the proposed amendment must be published for three months ahead of the next general election in two newspapers in each county, and finally it must be submitted to the qualified electors as a ballot question in the next general election and approved by a majority of those voting on the amendment. According to Petitioners, the legislature did not follow the necessary procedures for amending the Constitution before enacting Act 77 which created a new category of mail-in voting; therefore, the mail-in ballot scheme under Act 77 is unconstitutional on its face and must be struck down. Id., ¶¶27, 35-37. As relief, Petitioners seek, inter alia, a declaration and/or injunction that prohibits Respondents from certifying the November 2020 General Election results, which include mail-in ballots that are permitted on a statewide basis and are allegedlyimproper because Act 77 is unconstitutional.
The Judge found that the plaintiffs were likely to prevail on their state constitutional claims…
Accordingly, in careful consideration [on November 25] of the exigencies and time constraints in this matter of statewide and national import, and the longstanding constitutional mandate that every citizen of this Commonwealth is entitled to no less than a fair and free election, it was necessary [on November 25] to preliminarily enjoin, on an emergency and temporary basis, Executive Respondents from undertaking any other actions with respect to the certification of the results of the presidential and vice presidential elections, if indeed anything else needs to be done, pending an evidentiary hearing to ascertain the facts of this matter and to determine if the dispute is moot….
Based upon the record before it, this Court has sufficient grounds to enjoin Respondents from further certification activities on an emergency preliminary basis, pending the results of the evidentiary hearing it had scheduled for this date, after which the Court would have determined if a preliminary injunction should issue.4 Since the Court is sitting in equity it has the power to fashion such relief as it is vitally important that the status quo be preserved pending further judicial scrutiny….
Additionally, Petitioners appear to have established a likelihood to succeed on the merits because Petitioners have asserted the Constitution does not provide a mechanism for the legislature to allow for expansion of absentee voting without a constitutional amendment. Petitioners appear to have a viable claim that the mail-in ballot procedures set forth in Act 77 contravene Pa. Const. Article VII Section 14 as the plain language of that constitutional provision is at odds with the mail-in provisions of Act 77. Since this presents an issue of law which has already been thoroughly briefed by the parties, this Court can state that Petitioners have a likelihood of success on the merits of its Pennsylvania Constitutional claim.
This seems headed to the Supreme Court as a straight constitutional matter. It’s ethics zugzswang—meaning that no matter what the decision is, the result will be disastrous—because the remedy if the the mail-in balloting is ruled unconstitutional will cause great harm. The judge expressed this concern…
…this Court is mindful that one of the alternative reliefs noted by Petitioners would cause the disenfranchisement of the nearly seven million Pennsylvanians who voted in the 2020 General Election. Specifically, Respondents claim that a temporary stay would disenfranchise voters as the legislature would appoint the electors to the Election College. However, as noted, the legislature is not authorized to appoint the electors to the Electoral College until December 8, the “Federal Safe Harbor” date for certifying results for presidential electors. The Court agrees it would be untenable for the legislature to appoint the electors where an election has already occurred, if the majority of voters who did not vote by mail entered their votes in accord with a constitutionally recognized method, as such action would result in the disenfranchisement of every voter in the Commonwealth who voted in this election – not only those whose ballots are being challenged due to the constitutionality of Act 77. However, this is not the only equitable remedy available in a matter which hinges upon upholding a most basic constitutional right of the people to a fair and free election. Hence, Respondents have not established that greater harm will result in providing emergency relief, than the harm suffered by the public due to the results of a purportedly unconstitutional election.5
The Judge concluded:
For all of the above reasons, the Court respectfully submits that the emergency preliminary injunction was properly issued and should be upheld pending an expedited emergency evidentiary hearing
What will the Supreme Court do?
The Pennsylvania Supreme Court, which caused this mess by expanding procedures beyond what the legislature adopted, will surely overturn this ruling, and from there it will go to the U.S. Supreme Court. I would expect Chief Justice John Roberts to follow his past proclivities and refuse to disallow the unconstitutional mail-in ballots as the least objectionable of two evils. The question is whether any of the five remaining conservatives can be persuaded to agree. I doubt it. The wild reaction to a decision flipping Pennsylvania will be somewhat muted because the state alone can’t deny Biden the victory: the new total would be Biden 286 and Trump 252. From there it would take two more states to keep the President in the White House. In case you’re wondering, Nevada, and maybe others, would be in line for some ballot voiding if SCOTUS rules the mail-in votes unconstitutional.
Here’s the short version of the issue: the Pennsylvania Constitution had to be amended to allow mail-in voting, and the legislature just passed a new law instead. Can’t do that. The question now is whether the harm is irreversible.
This controversy has been looming since before the election. News sources, like the New York Times and Washington Post, that have intentionally ignored it have been presuming a level of certainty in the election results that just isn’t accurate. This simply ups the stakes if Biden supporters get a nasty surprise.
I recommend this article as supplementary reading: “An Illegitimate Election Plunges the Republic into a Crisis.”
It’s from Frontpage magazine, a hard right publication, so your Trump-Deranged friends and fans of the Axis of Unethical Conduct will call it a conspiracy theory and typical conservative paranoia. However, aside from some hyperbole, excessively partisan rhetoric and the tone in places, I can’t find much wrong with it.
I began writing about how the Democratic narrative that Bush and the Supreme Court “stole”the 2000 election was tearing apart the nation and crippling our system of government two decades ago on the old Ethics Scoreboard (still in cyber limbo, I’m sorry to say). My analysis was right. I’ve also been right about how damaging the 2016 Post Election Ethics Train Wreck, with its attendant Big Lies, the multiple soft coup attempts, and the self-corruption of the news media in order to destroy the Trump Presidency, would be and has been to the nation.
(Later today I’ll re-post an essay from 2010 warning both parties about their irresponsible behavior.)
The Frontpage piece simply points out that what I warned against has indeed come to pass. It concludes in part,
Democrats delegitimized Bush and then Trump by attacking the legitimacy of the 2000, 2004, and 2016 elections. Is it any wonder that by 2020 no one trusts election outcomes anymore?
The Democrats have made it clear that they want absolute power and that their own legitimacy isn’t a problem because they control the distribution of information through the media and now through an alliance with tech companies that monopolize internet search and social media.But propaganda doesn’t grant legitimacy, it destroys the public’s trust in institutions….When enough elections are delegitimized, then no election is legitimate. And then no president elected through such means is legitimate.
When public health experts insist that Trump rallies spread the coronavirus but Black Lives Matter riots don’t, then public trust and compliance collapse. The only lasting message of double standards is that there is no standard and that all that really matters is power.
The crisis of this election was decades and generations in the making. It’s now here.
Pointer and Facts: Legal Insurrection
16 thoughts on “2020 Election Ethics Train Wreck Update: Ethics Zugzwang In Pennsylvania”
“so inconsistent in my spelling of zugzwang (or zugswang). Both are acceptable, but I should pick one, and I’m picking zugzswang,”
I like “zugzswang”. It covers all the bases.
That Pennsylvania trial court judge is an impressive jurist and writer.
Why wasn’t this issue better litigated BEFORE the election?
Voter disenfranchisement should not be the concern of the judges; upholding the law is their concern. Every member of the legislature that voted to amend the regulations needs the millstone of this sausage factory hung around their neck; they are responsible for the disenfranchisement, not the courts. Every county election commissioner should have also known that this law was invalid and should have refused to obey it. At a minimum they should have segregated the questionable votes cast so they could be accounted for.
Any other analysis undermines the rule of law. It’s too bad the judges can’t impose penalties on those responsible for the passage of illegal laws.
As I understand it. Justice Alito ordered them segregated before the election.
I will have to check but I thought I read that the mail in ballots were shuffled into the general ballots. If they did, then how do you unring that bell? I hope I am wrong.
I agree with you. A few days ago there was a spirited debate revolving around the”Fruit of the Poisonous Tree” and inspired Jack to write a post about it from an ethics standpoint. While he made excellent points, the result was that finality was better than chaos. But, if the executive branch (both local and state) screwed up and the legislature didn’t follow the state constitution, then that falls on them and they should suffer the consequence.
Anyone that does strategic planning knows to evaluate what others will do in the event you do x. It stands to reason that much of this Zugzwang is predicated on the belief that courts will be loathe to disenfranchise voters. That allows those who attempt to manipulate the vote to capitalize on what they expect the court to do even in the event they are caught or are suspected of cheating.
The courts have no business attempting to impute some form of alternative equitable relief in voting issues. The only reasonable or equitable relief is what the law demands. Trying to prevent disenfranchisement of one group who unwittingly submitted invalid ballots disenfranchises that group which adhered to the strict letter of the law.
Having now read the opinion, the Pennsylvania Constitution article on elections, and Act 77, I don’t understand where this judge is coming from. Nothing in the Pennsylvania Constitution says anything about it being required to vote in person. The PA Constitution does create “absentee” voting, limited to the four situations the judge noted. However, Act 77 is very careful to distinguish “mail-in” from “absentee” voting, and nothing in the Pennsylvania Constitution that I can find seems to prohibit that. Can you point me to the relevant section?
The Constitution allows absentee voting, and describes when it can be used. It describes ballots at “polling places.” It doesn’t allow general mail-in voting. That would presumably require an amendment. Nor can the state courts authorize mail-in voting, since the Constitution of t he US specifically reserves that to the legislature. The section allowing the legislature to designate something other than “ballots” means raised hand or farts, but does not mean mail-in ballots.
“However, aside from some hyperbole, excessively partisan rhetoric and the tone in places, I can’t find much wrong with it.“
Except for that, General Lee, how is Appomattox this time of year?
No, because those are style, rhetoric and dicta. On substance and analysis, it’s 95% correct. I could rewrite the whole thing, make sure the tone was objective, and lose little of substance. So could you, I bet.
Zugzwang, please, not Zugswang nor Zugzswang both of which appear here – from the German Zug for move and Zwang for force. Zug also is used in German for train, such as Schnellzug for express train. So, just imagine the force of a train making you do something you don’t want to do, for example, rolling rapidly down the tracks in a car that stalled and could not get out of the way.
There does seem to be an out in the Pennsylvania constitution for what the legislature did in expanding absentee voting. Ballotpedia has the pertinent section, and the phrase which could apply allows the legislature to make provisions for absentee voting for those who: “ … on the occurrence of any election, are unable to attend at their proper polling places because of illness … .”
So, the role of the judge is to interpret the law and determine if it fits with the constitution. A pandemic is an illness, no? And, people are being told to stay home because of that illness. So, does illness in the PA constitution mean an individual too sick to vote in person, or does it mean, potentially, an illness throughout the land, and if the latter, does that illness prevent or only discourage in-person voting?.
You know the answer. The language can be disingenuously interpreted by judicial hack, but the language clearly means :too sick to vote” not “too scared of getting sick to vote.” Moreover, in the mail=in ballot situation, no justification was required, and there was no required nexus to the pandemic at all. I have no doubt that some judges might falsely interpret the Constitution, but it will be a lie.
Texas has a similar provision.
Texas Democrat Party urged mass mailing to all registered voters, citing CoronaVirus as a justification based on “illness” and the pandemia. To vote by mail in Texas, a resident needs to be 65 years or older, or sick or disabled, or in jail but otherwise eligible to vote. Voters who are out of the county during early voting or on Election Day can also register for mail-in voting. Eligible absentee voters in Texas have to fill out an application for a mail-in ballot and return it to their early voting clerk to then receive their ballot. The Texas Supreme Court ruled that that the Election Code does not authorize an early-voting clerk to send an application to vote by mail to a voter who has not requested one and that a clerk’s doing so results in irreparable injury to the State. Democrats wept, gnashed their teeth and lost the state, after spending a ton of cash with Bob O’Roarke leading the charge. Oddly, two heavily Hispanic populated border counties voted for Trump.
Does the fact that the President appointed one of the 5 conservative judges of the supreme Court over the court in the swing states affect anything?
Can you explain this to me? A friend shared it and i had NO idea what they meant.
Aren’t those circuit assignments simply which justice initially hears about cases or appeals that are addressed to the Supreme Court? Or something somewhat along those lines?
We’ve got lawyers here that must know the correct answer. However, I don’t think it has anything to do with liberal or conservative justices or who appointed them or anything along those lines.