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November 10, 2020

The General Assembly Can Limit the Election Day Damage; Will They?

Election Day 2020

Late in September, the Pennsylvania Supreme Court rewrote election law. They decided along party lines that, despite what the law said, that ballots received up to three days after November 3rd could be counted toward the election results.

The Republican strategy, so far, has been to file federal lawsuits in an attempt to have the State Supreme Court’s decision tossed out. Looking to the federal court system is a proper and prudent course of action. However, another course of action is available based on how the representatives, or electors, to the Electoral College are selected. According to Article II, Section 1 of the US Constitution:

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: but no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector.” (Emphasis added)

The bolded portion above essentially means that the Electoral College electors are selected based on the General Assembly’s criteria. In other words, the General Assembly still has some control over the matter, at least for the Presidential race. The General Assembly can and should pass a joint resolution reconfirming that electors will be chosen based on popular vote totals received by 8:00 pm on election night. They could further advise County Election Boards that if they submit their totals with votes received after the poll close, then the county’s results will not be counted toward the presidential vote at all.

Bear in mind that this action would only impact how votes for the President are tallied. It won’t affect any other races on the ballot. By narrowly tailoring the resolution to the Presidential race, it removes the Governor and Pennsylvania Judiciary from the equation. The Governor’s signature isn’t needed for this kind of resolution, and if there is a lawsuit, it would have to be brought at the federal level.

Passing the resolution advising the County Boards of Election on how the legislature will choose electors is entirely within the US Constitution’s scope of authority granted to the Pennsylvania Legislature. The only question is whether or not House and Senate leadership, along with the rank and file, have the willingness to use that authority to reclaim some of the power the PA Supreme Court has stripped away from them.