Former WA Attorney General: If election comes down to one lawsuit, it’ll be Pennsylvania
Nov 5, 2020, 8:48 AM | Updated: 10:23 am
Demonstrators urge that all votes be counted outside the Pennsylvania Convention Center. (AP Photo/Matt Slocum)
(AP Photo/Matt Slocum)
As key battleground states continue to tally votes, President Trump’s campaign has filed a series of lawsuits challenging those efforts. It’s in Pennsylvania, though, where former Washington Attorney General Rob McKenna believes we could see a truly interesting court battle in the days and weeks ahead.
“I don’t think it’s likely this will come down to Pennsylvania, but if it does come down to one legal challenge from one state, it’s probably this one, because of the huge number of votes that Pennsylvania received in the mail after Election Day,” McKenna told KIRO Radio’s Dave Ross.
Prior to the election, Pennsylvania’s state Supreme Court issued a ruling allowing ballots to be received up to three days after Election Day. The U.S. Supreme Court was asked by Republicans to issue its own ruling, but opted not to take up the case, while leaving the door open for a post-Election Day ruling.
The state Supreme Court’s ruling to allow ballots to be received in that three-day window was predicated on the idea it had “broad power” to issue a ruling on the election amid a natural disaster like the current pandemic.
If the U.S. Supreme Court does ultimately hear the case, its main priority will be figuring out whether the state court’s ruling violated either federal law or the Constitution. For the former, McKenna believes that’s “unlikely” to hold water. For the latter, though, things are murkier, especially since the state court’s ruling didn’t require ballots received in that three-day window to be postmarked on Election Day.
“(The Supreme Court) can’t change the rules of other states under the federal Constitution — time, place, and manner of elections is controlled by state law,” he noted. “However, there are federal constitutional requirements, and there are federal statutory requirements.”
Despite all that, McKenna points out that a Supreme Court ruling on Pennsylvania’s ballots could end up being a moot point, given that Joe Biden has several paths to 270 electoral votes. With the Associated Press calling Arizona for Biden already, he would only need to win one of Nevada, Georgia, North Carolina, or Pennsylvania in order to take the election.
“If other states decide this election, I think the attention on Pennsylvania will fade,” McKenna predicted.
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