[EL] question about Pennsylvania official election returns

Mon Dec 14 14:17:45 PST 2020

Justice Alito's November 6 order, reprinted below, specifically recites
that these ballots either not be counted or be counted separately.  This
order came after the Pennsylvania Republican Party requested it, in part,
to "preserve jurisdiction." Because the issue of whether these ballots
should be included or not in the totals is unsettled or undecided, this
case does not appear to be moot. In addition, prior language in a
pre-election opinion in the case suggested that this Electors Clause issue
was an important one deserving of an opinion, so mootness could also be
avoided for that reason. This may well help to explain the shift in Trump
litigation toward Electors Clause claims in recent weeks.

With responsive briefs filed on November 30, (after an extension of time
granted to harmonize the briefing deadline with the Scarnati companion case
from Pennsylvania), it appears likely this case will result in a decision
and perhaps an opinion.  If there is an opinion on the Electors Clause it
would not directly decide the election like the Texas case might have, but
depending on the wording of the possible opinion on the Electors Clause it
might still inspire state legislative action now or in a future election.
The Court may well prefer to rule on the Electors Clause using this
particular vehicle in order to avoid spending too much political capital by
deciding the presidency directly as invited to by Texas v. Pennsylvania.

The timing of such an opinion is critical.  The court, after previously
denying two motions to expedite, nevertheless expressed a willingness to
expedite after the election given reason to do so.  Thus, conceivably there
could be an opinion prior to January 6. Is there a serious Court watcher
that has better knowledge of the possibilities here?

But no matter when such an Opinion on the Electors Clause comes down, if
that opinion contains the language that state legislatures, acting with
reference to presidential elections, are not bound by their state
constitution and may not be "interfered" with or modified by other branches
including the state courts, but rather are constrained only by Congress and
the federal Constitution, that would be a legal revolution in election law,
in my opinion, even if it occurs later in 2021.

Paul Lehto, J.D.

Nov 06 2020 Order issued by Justice Alito: All county boards of election
are hereby ordered, pending further order of the Court, to comply with the
following guidance provided by the Secretary of the Commonwealth on October
28 and November 1, namely, (1) that all ballots received by mail after 8:00
p.m. on November 3 be segregated and kept “in a secure, safe and sealed
container separate from other voted ballots,” and (2)* that all such
ballots, if counted, be counted separately. *Pa. Dep’t of State,
Pennsylvania Guidance for Mail-in and Absentee Ballots Received From the
United States Postal Service After 8:00 p.m. on Tuesday, November 3, 2020
(Oct. 28, 2020); Pa. Dep’t of State, Canvassing Segregated Mail-in and
Civilian Absentee Ballots Received by Mail After 8:00 p.m. on Tuesday,
November 3, 2020 and Before 5:00 p.m. on Friday, November 6, 2020 (Nov. 1,
2020). Until today, this Court was not informed that the guidance issued on
October 28, which had an important bearing on the question whether to order
special treatment of the ballots in question, had been modified. The
application received today also informs the Court that neither the
applicant nor the Secretary has been able to verify that all boards are
complying with the Secretary’s guidance, which, it is alleged, is not
legally binding on them. I am immediately referring this application to the
Conference and direct that any response be filed as soon as possible but in
any event no later than 2 p.m. tomorrow, November 7, 2020.

On Mon, Dec 14, 2020 at 1:52 PM <sean at impactpolicymanagement.com> wrote:

> The Certificate of Ascertainment probably wouldn’t have that sort of
> information (though states have wide latitude in the format and information
> included on the document, some states literally don’t even list which
> presidential candidate is associated with the winning – or any other –
> slate of electors). But my assumption would be that it does not include
> those ballots, as the litigation surrounding them is still ongoing.
> SCOTUSblog has a (hopefully accurate) chronology
> <https://www.scotusblog.com/case-files/cases/republican-party-of-pennsylvania-v-boockvar-2/>
> of the case, in which the most recent action was a filing by Secretary of
> State Boockvar on November 30. So those ballots are likely still segregated
> and uncounted, and if eventually ruled to be legal ballots will be included
> in some sort of amended certified results (though the Certificate of
> Ascertainment will not be amended, of course).
>
>
>
> Sean Parnell
>
>
>
> *From:* Law-election <law-election-bounces at department-lists.uci.edu> *On
> Behalf Of *John Koza
> *Sent:* Monday, December 14, 2020 3:42 PM
> *To:* 'Richard Winger' <richardwinger at yahoo.com>; law-election at uci.edu
> *Cc:* 'Adam Yake' <ayake at pa.gov>
> *Subject:* Re: [EL] question about Pennsylvania official election returns
>
>
>
> Pennsylvania has a Certificate of Ascertainment at the National Archives
> web site dated November 24 at
>
>
> https://www.archives.gov/files/electoral-college/2020/ascertainment-pennsylvania.pdf
>   However, it doesn’t say whether it includes the mail ballots arriving in
> the 3 days after Election Day.
>
>
>
> Dr. John R. Koza
>
> Box 1441
>
> Los Altos Hills, California 94023 USA
>
> Phone: 650-941-0336
>
> Email: john at johnkoza.com
>
> URL: www.johnkoza.com
>
> URL: www.NationalPopularVote.com <http://www.nationalpopularvote.com/>
>
>
>
> *From:* Law-election <law-election-bounces at department-lists.uci.edu> *On
> Behalf Of *Richard Winger
> *Sent:* Monday, December 14, 2020 12:03 PM
> *To:* law-election at uci.edu
> *Cc:* Adam Yake <ayake at pa.gov>
> *Subject:* [EL] question about Pennsylvania official election returns
>
>
>
> I now have the official election returns for every state except
> Pennsylvania.  If one goes to http://www.electionreturns.pa.gov, one sees
> Nov 2020 election returns but the page says, "These vote totals do not
> include any votes from mail ballots received between 8 pm on election day
> and 5 pm the following Friday."
>
>
>
> I tried phoning the Pa. Dept. of State, but after waiting on hold for 30
> minutes, a computer voice said it was impossible to reach a human being,
> and let me leave a voice mail, and hung up.
>
>
>
> Does anyone know how to get the final Pa. results, or know where they can
> be found?  Perhaps they don't exist yet.
>
>
>
> Richard Winger 415-922-9779 PO Box 470296, San Francisco Ca 94147
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-- 
Paul R Lehto, J.D.
1105 Sunset Blvd NE
Renton, WA 98056
lehto.paul at gmail.com
906-204-4965 (cell)
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