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Feb. 26, 2021 - Dennis Prager Show
05:47
Did the PA Courts Illegally Usurp Election Law?
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All right, anyway, let me just reintroduce you.
You're with the Heritage Foundation.
You wrote a piece about why this is a very bad thing that the Supreme Court refused to hear the case.
Was it specifically Pennsylvania?
Yes, it was.
It was specifically Pennsylvania.
Two different cases that had been appealed.
What were they?
Pennsylvania and what?
No, it was just Pennsylvania.
Oh, they were both Pennsylvania.
They were both Pennsylvania.
Okay, so I asked you...
If the Pennsylvania Supreme Court says you, the Secretary of State, can change election law, even though the Constitution of Pennsylvania says only the legislature may, why does that go to the Supreme Court?
Well, it's not the Pennsylvania Constitution, it's the U.S. Constitution.
The reason is there's two different...
What are called the election clauses in the U.S. Constitution that govern congressional elections and presidential elections.
And those provisions give the power to set the rules for those elections.
Specifically, it says, to the state legislatures.
In other words, it's not the state government in general.
Only the state legislature has the power to set the rules.
Look, if the state legislature in Pennsylvania, if they on their own had decided to change the law to say, yeah, we'll accept absentee ballots for three days after Election Day, they could do that, and it wouldn't be a federal case.
But the issue here is the state legislature had already set the law, and the law was absentee ballots have to come in by the end of Election Day.
And instead, it was the Secretary of State...
And the state court that said, oh, well, we're just going to break the law, ignore the law, and we're going to count ballots that come in after Election Day.
That, I think, clearly violated the U.S. Constitution, and that's why the court should have taken the case.
Because, like I said, it...
What was the reasoning of the majority?
Well, they didn't give a reason other than one paragraph saying, well, the issue is now moot.
The election's over.
We don't need to decide this.
Are you, politically speaking, are you surprised with regards to any of the justices?
I was shocked.
I was shocked because the only three who dissented from this, like I said, were Gorsuch, Alito, and Thomas.
The two newest justices.
The conservatives worked so hard to get on the court because we wanted folks who would actually enforce the Constitution, Brett Kavanaugh and Amy Coney Barrett.
They weren't part of the dissent.
They joined with the Chief Justice and the Liberal Justices to say, we're not going to hear the case.
I was just shocked at that.
I couldn't believe it.
It does seem that it's a crapshoot appointing a conservative to the Supreme Court.
Unfortunately, you're absolutely right.
I don't understand why it's moot, and I don't understand, now that you've explained it, how it could not possibly be a legitimate case for the Supreme Court to take.
By the way, does this apply only to national bodies like the President, Senate, and House?
The rule applies to congressional elections and presidential elections that state legislatures set the rules.
Well, look, you're right.
Justice Thomas agreed with you.
In fact, he says at the end of his dissent, he's wondering what the court's waiting for.
They failed to settle this dispute before the election to provide clear rules.
And now the court's failing again to provide clear rules for future elections.
It's a green light to every Democratic governor to have his secretary of state change the rules of elections.
Yes, that is exactly right.
And that's why it is just so, like I said, dangerous and so foolish for the court to have not taken the case and frankly overruled.
All right, so one final question.
Let us say they took the case and overruled.
What would happen then?
Would it invalidate the Pennsylvania results?
No, it would not have, because as Justice Thomas pointed out, the number of absentee ballots received after Election Day So Barron and Kavanaugh did not even have a political reason not to take it?
I don't know.
Like I said, I just can't understand it.
I really don't see any political purposes in not taking the case.
Well, my friend, I have a lot of guests.
You're one of the clearest.
I thank you very much.
Thanks for having me, Dennis.
Pleasure.
The great perk of my work is I want to talk to somebody, I talk to them, I get it clear.
Now it's clear to me.
Unfortunately, it's crystal clear to me.
That's the irony.
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