Question about possible legal challenge in Pa.

[violasays]

I just saw this exchange in the comments of the New York Times. I also am not a lawyer, but an 18 year old pre-med student. Is this accurate?

Comment

"Doesn't Marbury v. Madison mean that Courts can overrule legislatures? So, isn't it wrong when "Justice Kavanaugh also said that state legislatures, rather than state courts, have the last word in setting state election procedures"? I'm sure we can come up with bigoted legislatures coming up with a new law that disregarded the State's Constitution and maybe even the US Constitution. In those cases, the State Court could overturn the legislature. (I am not a lawyer.)"

Response to Comment

"The issue in Pa. is that the state supreme court ruled on state (not federal) constitutional grounds that mail-in votes must be counted if postmarked before or on election day. The state legislature did not pass a law to that effect. So, the argument would be that the state SC usurped the state legislature's US constitutional mandate. I hate to say it, but this looks like an easy case on the face of things. I believe Trump would win the case. Let's hope Biden doesn't need Pa."

[getagrip_already]

1. There is no existing doctrine that says that though.....

Kav kind of threw that in after he chugged his beer back.

The scotus would be taking a very radical turn to create that rule. It goes against centuries of court doctrine.

[mr_lebowski]

2. Not sure it's as much of a slam-dunk as the 2nd poster says ...

But OTOH, Marbury v. Madison ... I'm not sure it applies to States.

Did the legislature specifically pass a law saying that ballots CAN'T be counted if received after election day?

That would be a key question I think though not necesssarily decisive.

Might come down to how well PA SC argued that there's a mandate in the State Constitution to count such votes. How compelling their argument was, IOW.

[northlake9]

3. How many ballots?

The challenge in this case is about ballots received after November 3 not the ballots already received. The PA Secretary of State addressed this issue, ballots received after will be separated. It looks like the Biden Campaign views the ballots already received will win. Trump efforts to stop all counting another issue.

[The Magistrate]

4. It Would Be Nice To Apply The Same Logic Federally, Ma'am

In many places the Constitution says Congress may do or direct, without the slightest reference to any other branch. Nowhere does the Constitution grant federal courts duty or right to review, or to over-rule or condition in any part, any law passed by Congress. The Marbury v Madison precedent, though of long standing and often useful (and just as often not), has no Constitutional basis whatever, and further, was an exceptionally shabby act aimed at hobbling an incoming administration detested by the defeated Federalists, who viewed Mr. Jefferson as a radical dangerous to property, good order, and morals. The Federalist Marshall simply conjured up out of fragments of English Common Law tradition a right for his court to throw out any act of Jefferson he disapproved of. By rights, if the logic being urged against the Pennsylvania court is fully applied, the authority of the Supreme Court would disappear up its own fundament, in the twinkling of an eye.

The argument pressed asserts that where the Constitution says 'as the legislature directs' it is solely the prerogative of the legislature. There is no mention of a Governor. Why couldn't the legislature simply pass a measure touching on elections, that had the full effect of law without the governor's signature? There is no difference, in the current state of the law, between excluding the full scope of judicial review over a law passed by the legislature concerning elections, and proclaiming such a measure need not be signed by the governor either --- simply because it is not explicitly stated in the document to be there. People pretending to understand the 'original intent' of the founders know that wording assumed normal practice of the several branches of a state government. They may well lie and deny it, but that is true.

It is an argument of this class: A man handing stolen loot to an accomplice, with instruction to pass it on to someone else's keeping for a day, and not to tell him to whom when he does, answers truthfully when saying 'I have it not, nor know where it is' when he's asked if he's got the swag.

[violasays]

5. Thanks everyone!

I feel much better, and the way things are looking in my home state, this might be an entirely moot point. I’m down the street from where they are counting the ballots in Philly. Keeping my fingers crossed for great news!