Amicus Curiae Brief — Republican National Committee, et al., Applicants v. Faith Genser, et al.

Supreme Court briefOct 31, 2024

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No. 24A408

In The Supreme Court of the United States

______________

REPUBLICAN NATIONAL COMMITTEE, ET. AL,

Applicants,

FAITH GENSER, ET. AL,

Respondents.

On Emergency Application for Stay Pending Disposition of a Petition for a Writ of

Certiorari from the Supreme Court of Pennsylvania

AMICUS BRIEF OF THE AMERICAN CENTER FOR LAW AND JUSTICE

IN SUPPORT OF APPLICANTS

JAY ALAN SEKULOW

Counsel of Record

JORDAN SEKULOW

STUART J. ROTH

ANDREW J. EKONOMOU

BENJAMIN P. SISNEY

MATTHEW R. CLARK

NATHAN J. MOELKER

AMERICAN CENTER

FOR LAW & JUSTICE

201 Maryland Ave., NE

Washington, DC 20002

(202) 546-8890

sekulow@aclj.org

Counsel for Amicus Curiae

TABLE OF CONTENTS

TABLE OF AUTHORITIES ...........................................................................................ii

INTEREST OF AMICUS CURIAE ................................................................................ 1

SUMMARY OF ARGUMENT ........................................................................................ 2

ARGUMENT ................................................................................................................... 4

I. This Court Should Issue a Stay to Protect the Laws of the Pennsylvania

General Assembly From Radical Reinterpretation Shortly Before the Federal

Election. ....................................................................................................................... 4

This Court Should Enter a Purcell Stay to Prevent the Pennsylvania

Supreme Court’s Last-minute Disruption of the Pennsylvania Election Code. ... 4

Pennsylvania Law Mandates That Voters Cannot Vote A Second Time

After Casting a Mail-In Ballot. ............................................................................... 9

By Directly Superseding the Legislative Judgment About Mail-In

Ballots, the Pennsylvania Supreme Court violated the Elections Clause.......... 11

CONCLUSION .............................................................................................................. 14

TABLE OF AUTHORITIES

Cases

Alliance for Retired Ams. v. Sec’y of State,

240 A.3d 45 (Me. 2020)................................................................................................ 6

Bush v. Gore,

531 U.S. 98 (2000) ................................................................................................. 1, 12

Crookston v. Johnson,

841 F.3d 396 (6th Cir. 2016) ....................................................................................... 8

DeVisser v. Sec’y of State & Dir. of the Bureau of Elections,

981 N.W.2d 30 (Mich. 2022)........................................................................................ 8

Fay v. Merrill,

256 A.3d 622 (Conn. 2021) .......................................................................................... 7

Fischer v. United States,

144 S. Ct. 2176 (2024) ................................................................................................. 1

Lamb’s Chapel v. Center Moriches Sch. Dist.,

508 U.S. 384 (1993) ..................................................................................................... 1

League of United Latin Am. Citizens v. Pate,

950 N.W.2d 204 (Iowa 2020) ....................................................................................... 7

Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach,

523 U. S. 26 (1998) ...................................................................................................... 9

McConnell v. FEC,

540 U.S. 93 (2003) ....................................................................................................... 1

McDonnell v. United States,

579 U.S. 550 (2016) ..................................................................................................... 1

Merrill v. Milligan,

142 S. Ct. 879 (2022) ............................................................................................... 5, 8

Moore v. Harper,

600 U.S. 1 (2023) ................................................................................................. 12, 13

Moore v. Lee,

644 S.W.3d 59 (Tenn. 2022) ........................................................................................ 7

iii

Murphy v. Smith,

583 U.S. 220 (2018) ..................................................................................................... 8

Purcell v. Gonzalez,

549 U.S. 1 (2006) ......................................................................................................... 4

Republican Nat’l Comm. v. Democratic Nat’l Comm.,

589 U.S. 423 (2020) ............................................................................................. 5, 6, 7

SAS Inst., Inc. v. Iancu,

584 U.S. 357 (2018) ..................................................................................................... 8

Trump v. Anderson,

601 U.S. 100 (2024) ..................................................................................................... 1

Constitutional Provisions

U.S. Const. amend. XVII .............................................................................................. 11

U.S. Const. art. I, § 2, cl. 1............................................................................................ 11

U.S. Const. art. I, § 4, cl. 1........................................................................................ 4, 11

U.S. Const. art. II, § 1, cl. 2 ...................................................................................... 4, 11

Statutes

25 P.S. § 3050((a.4)(5)(ii)(F) ................................................................... 2, 5, 8, 9, 10, 13

25 P.S. § 3150.16 ............................................................................................................. 9

INTEREST OF AMICUS CURIAE1

The American Center for Law and Justice (“ACLJ”) is an organization

dedicated to the defense of constitutional liberties secured by law, including election

integrity and security in the electoral process. ACLJ attorneys have appeared often

before this Court as counsel for parties, e.g., Trump v. Anderson, 601 U.S. 100 (2024)

(unanimously holding that states have no power under the U.S. Constitution to

enforce Section Three of the Fourteenth Amendment with respect to federal offices);

McConnell v. FEC, 540 U.S. 93 (2003) (unanimously holding that minors enjoy the

protection of the First Amendment); Lamb’s Chapel v. Center Moriches Sch. Dist., 508

U.S. 384 (1993) (unanimously holding that denying a church access to public school

premises to show a film series on parenting violated the First Amendment); or as

amici, e.g., Fischer v. United States, 144 S. Ct. 2176 (2024); McDonnell v. United

States, 579 U.S. 550 (2016); and Bush v. Gore, 531 U.S. 98 (2000). The ACLJ has a

fundamental interest in defending the right of states to set election qualifications.

The resolution of this case is a matter of substantial concern to the ACLJ because it

raises the issue of whether the Pennsylvania General Assembly may enforce

reasonable voting laws in the national election of United States President to ensure

that election security and integrity are maintained, or it will instead be superseded

by a court that rejects the plain meaning of those laws.

1 Pursuant to Supreme Court Rule 37.6, amicus curiae states that no counsel for any party authored

this brief in whole or in part, and no entity or person, aside from amicus curiae, its members, and its

counsel, made any monetary contribution toward the preparation or submission of this brief.

SUMMARY OF ARGUMENT

Especially given the clear national impact at hand, this Court should restore

the authority of the Pennsylvania General Assembly to set Pennsylvania’s election

laws. Pennsylvania law is clear and unambiguous: “[a] provisional ballot shall not

be counted if . . . [t]he elector’s absentee ballot or mail-in ballot is timely received by

a county board of elections.” 25 P.S. § 3050(a.4)(5)(ii)(F). The Pennsylvania

legislature has categorically forbidden counting the provisional ballots of those who

already submitted mail-in ballots, but the Pennsylvania Supreme Court has set

aside that mandate and ruled that voters may cast a provisional ballot after having

already submitted a mail-in ballot. This ruling cast Pennsylvania elections into

chaos by taking legislative authority from the Pennsylvania General Assembly and

granting it to the courts. The harm is heightened by the fact that Pennsylvania

carries 19 electoral votes in the national election of the President of the United

States. It should be immediately stayed.

The Purcell principle should lead this Court to immediately enter a stay of

the Pennsylvania Supreme Court’s attempt to rewrite state election law. The Purcell

principle is a modern moniker for the commonsense doctrine that election laws

should remain fixed and not be radically changed by courts shortly before elections

occur or, as in this case, after voting has already begun. This doctrine applies with

equal rigor to state and federal courts; in either circumstance, the electoral process

is threatened when election laws are challenged and litigated at the last minute.

Restoring the status quo, which existed until the decision of the Pennsylvania

Supreme Court, of prohibiting the counting of votes by people who have already cast

their mail-in ballots would return election officials to the exact same rules for

processing provisional ballots that the legislature actually passed. State courts have

regularly relied on Purcell, acknowledging the basic principles that it articulated as

applicable to state courts deciding challenges to election laws. Whether a federal or

state court, last-minute changes to election procedures threaten election integrity

and the legislature’s responsibility to govern election procedures. Pennsylvania law

is clear; if an elector votes with a mail-in ballot they are not eligible to have another

vote counted in Pennsylvania.

State legislatures possess the authority to legislate how federal elections will

proceed. Neither state nor federal courts have the authority to ignore those

parameters to set up their own procedures. When a state court supplants the state

legislature’s role, it has taken to itself authority that the Constitution has explicitly

placed elsewhere. The Constitution reserves to the state legislatures the plenary

authority to set election laws and state supreme courts lack authority to supersede

those careful legislative policy judgments. The Pennsylvania Supreme Court’s

ruling effectively nullifies the Pennsylvania General Assembly’s unambiguous

command that provisional ballots must not be counted if the voter has already voted

by mail. The Elections Clause denies the lower court that authority.

ARGUMENT

This Court Should Issue a Stay to Protect the Laws of the

Pennsylvania General Assembly from Radical Reinterpretation

Shortly Before the National Election.

The Constitution vests the primary authority to set election regulations in

state legislatures, not the courts; that authority has been threatened by the

Pennsylvania Supreme Court’s ruling, in the eleventh hour before the election, that

sets aside the plain text of Pennsylvania’s election code. The Elections Clause, U.S.

Const. art. I, § 4, cl. 1, assigns to the “Legislature” of each State the power to direct

the “time, place, and manner” whereby elections will be conducted. The Electors

Clause, U.S. Const. art. II, § 1, cl. 2, likewise assigns to the “Legislature” of each State

the power to direct the “manner” of choosing presidential electors in federal elections.

That authority to govern elections is threatened when a state court rejects the clear

dictates of an election code in favor of its own view of how elections should proceed.

This Court Should Enter a Purcell Stay to Prevent the

Pennsylvania Supreme Court’s Last-minute Disruption of the

Pennsylvania Election Code.

The Purcell principle should lead this Court to immediately enter a stay of the

Pennsylvania Supreme Court’s attempt to rewrite state election law. The Purcell

principle is a recent name for what is really a commonsense doctrine; election laws

should remain fixed and not be changed shortly before elections occur. Such changes

obviously threaten the integrity of and the nation’s trust in the electoral system. This

Court has warned repeatedly of the dangers of last-minute changes to election

procedures: “Court orders affecting elections, especially conflicting orders, can

themselves result in voter confusion and consequent incentive to remain away from

the polls. As an election draws closer, that risk will increase.” Purcell v. Gonzalez,

549 U.S. 1, 4-5 (2006). While the doctrine has been applied with rigor to federal courts

that have interfered with state election procedures, that risk is still threatened

whether it be state courts or federal courts that do the tampering. There is no reason

why last-minute judicial changes to state rules for federal election by state courts

would be any less destabilizing than the same changes by federal courts.

Here, the lawful status quo under the Elections and Electors Clauses is the

rule passed by the General Assembly. That prohibition of double voting, which existed

until the decision of the Pennsylvania Supreme Court, would simply require election

officials to apply the exact same rules for processing provisional ballots that governed

before that decision. But without this Court’s intervention, the county boards will

count ballots that are clearly unlawful under 25 P.S. § 3050(a.4)(5)(ii)(F) and the

Pennsylvania election will have been irretrievably altered. The Pennsylvania

Supreme Court has rewritten election law with the stroke of a pen. This is no mere

state law matter, however, as Pennsylvania’s 19 electoral votes weighs heavily in the

Electoral College’s calculus. The ruling below impacts the national election.

As Justice Kavanaugh has highlighted, “[l]ate judicial tinkering with election

laws can lead to disruption and to unanticipated and unfair consequences for

candidates, political parties, and voters, among others.” Merrill v. Milligan, 142 S.

Ct. 879, 881 (2022) (Kavanaugh, J., concurring). Nothing could be more confusing or

disruptive than a state changing its procedures – here, to allow double voting – at the

last minute. Here, the Pennsylvania Supreme Court has upended Pennsylvania

election law a mere matter of days before the 2024 national election. This Court’s

warning against such last-minute changes applies in full force here, to a change that

“fundamentally alters the nature of the election.” Republican Nat’l Comm. v.

Democratic Nat’l Comm., 589 U.S. 423, 424 (2020) (per curiam). Courts, whether

federal or state, should seek “to avoid this kind of judicially created confusion.” Id. at

425.

State courts should not be and are not immune to the Purcell principle’s

warning against last minute changes to election law. Regardless of whether it is a

federal or state court, last minute changes to election procedures threaten election

integrity – and trust. In fact, state courts have regularly relied on Purcell to address

their election disputes, acknowledging the basic principles that it articulated and

applying its principled caution about the dangers of injunctive relief shortly before

the election.

For example, the Maine Supreme Court affirmed a lower court’s decision to

deny an injunction request made by an organization and group of voters who sought

to have the Maine Secretary of State count absentee ballots received ten days after

the statutory deadline. Alliance for Retired Ams. v. Sec’y of State, 240 A.3d 45, 52

(Me. 2020). The Maine Supreme Court cited and relied on Purcell for its decision,

emphasizing the need for caution in interfering with state election laws. The court’s

opinion discussed Purcell at length, “find[ing] it instructive” that the Supreme Court

stayed a Wisconsin federal court’s injunction with the admonition that it “‘has

repeatedly emphasized that lower federal courts should not ordinarily alter the

election rules on the eve of an election.’” Id. (quoting Republican Nat’l Comm. v.

Democratic Nat’l Comm., 589 U.S. at 424). Although the cited language from this

Court’s decision emphasizes the need for lower federal courts to follow Purcell, the

Maine Supreme Court showed no hesitancy in acknowledging that Purcell’s warning

applied to it as it adjudicated similar challenges.

The Connecticut Supreme Court, likewise, has acknowledged the Purcell

principle as applicable in state proceedings and relied on this Court’s precedent as

authoritative guidance in addressing the timing of election questions. Fay v. Merrill,

256 A.3d 622, 638 n. 21 (Conn. 2021). That court highlighted that the Purcell principle

would be implicated by a state court declaratory judgment in the plaintiff’s favor in

an election matter and emphasized that “[t]he Purcell principle remains applicable”

to the proceedings before it. Id.

The Tennessee Supreme Court relied on this principle in Moore v. Lee, 644

S.W.3d 59 (Tenn. 2022), a case in which a group of voters challenged a state Senate

redistricting plan as violating the Tennessee Constitution. That court emphatically

relied on Purcell to prohibit any last-minute interference with state voting laws. Id.

at 65. It emphasized that its own precedent was not in tension with Purcell but

“similarly has shown restraint when asked to enjoin the effectiveness of

constitutionally suspect reapportionment plans.” Id. at 66.

Many state courts have regularly acknowledged this same principle and

refused to condone last-minute attacks on election legislation. See League of United

Latin Am. Citizens v. Pate, 950 N.W.2d 204, 215–16 (Iowa 2020) (declining, “on the

eve of this election[,] to invalidate the legislature’s statute providing additional

election safeguards,” particularly given that “[t]he United States Supreme Court has

repeatedly warned that courts ‘should ordinarily not alter the election rules on the

eve of an election’”) (quoting Republican Nat’l Comm. v. Democratic Nat’l Comm., 589

U.S. at 424).

In short, Purcell is not a doctrine for federal courts alone. As a basic

jurisprudential principle, whether it is a state court or federal court performing the

change, election laws should not be radically revisited at the last minute. Such lastminute changes threaten the right to vote and attack the authority of state

legislatures to govern elections. “When an election is close at hand, the rules of the

road must be clear and settled. Late judicial tinkering with election laws can lead to

disruption and to unanticipated and unfair consequences.” Milligan, 142 S. Ct. at

880-81 (Kavanaugh, J., concurring).

The principles underlying the Purcell doctrine are not limited to federalism;

they reflect the basic interest of the American people in ensuring that elections are

free and fair and not disrupted by last minute threats to the electoral process. Purcell

is no esoteric doctrine: “[c]all it what you will—laches, the Purcell principle, or

common sense—the idea is that courts will not disrupt imminent elections absent a

powerful reason for doing so.” DeVisser v. Sec’y of State & Dir. of the Bureau of

Elections, 981 N.W.2d 30, 35 (Mich. 2022) (Welch, J., concurring) (quoting Crookston

v. Johnson, 841 F.3d 396, 398 (6th Cir. 2016)). That basic idea applies here;

Pennsylvania’s unambiguous election laws should not be disrupted immediately

before the election by any court, including the Pennsylvania Supreme Court – and

especially not to allow double voting in a national election.

Pennsylvania Law Mandates That Voters Cannot Vote a Second

Time After Casting a Mail-In Ballot.

Pennsylvania law is clear and unambiguous: “A provisional ballot shall not be

counted if . . . [t]he elector’s absentee ballot or mail-in ballot is timely received by a

county board of elections.” 25 P.S. § 3050(a.4)(5)(ii)(F). The use of the word “shall”

creates a mandatory and nondiscretionary obligation. SAS Inst., Inc. v. Iancu, 584

U.S. 357, 362 (2018) (“The word ‘shall’ generally imposes a nondiscretionary duty.”);

see Murphy v. Smith, 583 U.S. 220, 223 (2018) (“[T]he word ‘shall’ usually creates a

mandate, not a liberty.”); Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach, 523

U. S. 26, 35 (1998) (This Court emphasized that shall is mandatory and “normally

creates an obligation impervious to judicial discretion.”). Regardless of this

mandatory “shall,” the Pennsylvania Supreme Court has created, from nothing, an

exception to this statutory mandate, in situations where a mail-in ballot is later

determined to be disqualified for failing to follow statutory obligations. But no such

exception exists or can be justified under the law; the law imposes a plain mandate.

Pennsylvania law provides a specific procedure for mail-in voting. 25 P.S. §

3150.16 prescribes the procedure by which electors vote a mail-in ballot. It requires

electors to mark ballots, fold those ballots, and “enclose and securely seal the same

in the envelope on which is printed, stamped or endorsed ‘Official Election Ballot.’

This envelope shall then be placed in the second one, on which is printed the form of

declaration of the elector[.]” Id. § 3150.16(a). This procedure is mandatory, with each

step required as an application of the state’s crucial interest in protecting election

integrity and security. And electors who submit mail-in ballots “shall not be eligible

to vote at a polling place on election day.” Id. § 3150.16(b).

The law here is clear; if an elector votes with a mail-in ballot, they are not

eligible to vote again in Pennsylvania. Nothing about the law creates any kind of

exception for those voters who have voted by mail, but their vote is determined

ultimately invalid for some reason. Instead, 25 P.S. § 3050(a.4)(5)(ii)(F) imposes an

unambiguous mandate. As a dissent below emphasized, “[a] timely received mail

ballot is a vote of the elector, even if it might ultimately be excluded from the certified

election returns as part of the pre-canvass and canvass.” App. 63a (Brobson, J.,

dissenting). Once a voter has voted by mail, they simply have voted; the possibility

that their vote might not be counted at some future time due to disqualification does

not change that fact. 25 P.S. § 3050(a.4)(5)(ii)(F) contains a clear and unambiguous

mandate. The directive to the county boards of elections is mandatory—the

provisional ballot of someone who has voted by mail is invalid. Period. “This directive

is not difficult to understand, interpret, or apply.” App. 50a (Mundy, J., dissenting).

The Butler County Board of Elections in this case, therefore, did exactly what it was

required by law to do; it refused to count the second votes of individuals who had

already voted by mail. This was its statutory obligation, and this was the obligation

that the Pennsylvania Supreme Court evaded.

By Directly Superseding the Legislative Judgment About MailIn Ballots, the Pennsylvania Supreme Court Violated the

Elections Clause.

Under the Elections Clause, state legislatures possess the authority to legislate

how federal elections will proceed. Neither state nor federal courts have any role in

creating those procedures. When a state court supplants the state legislature’s role,

as the Pennsylvania Supreme Court did here, it has taken to itself authority that the

Constitution instead expressly vests in another branch of state government. The

Pennsylvania Supreme Court deviated from the plain language of the statute, and in

so doing, improperly took to itself the authority to legislate elections. It is as simple

as this: 25 P.S. § 3050(a.4)(5)(ii)(F) categorically prohibits the counting of ballots that

the Pennsylvania Supreme Court has now ordered to be counted. “The Election Code

provisions at issue are clear, and they dictate that the Board shall not count an

elector’s provisional ballot if the elector’s mail ballot is timely received by the Board.”

App 74a (Brobson, J., dissenting).

The Constitution reserves to the state legislatures the authority to set election

laws, not the whims of a court. No state supreme court has authority to supersede

those careful legislative policy judgments. The Constitution’s Elections Clause vests

in state legislatures, specifically, the plenary power to set election laws. “The Times,

Places and Manner of holding Elections for Senators and Representatives, shall be

prescribed in each State by the Legislature thereof; but the Congress may at any time

by Law make or alter such Regulations, except as to the Places of chusing Senators.”

U.S. Const. art. I, § 4, cl. 1. The Constitution’s Electors Clause directs that “[e]ach

State shall appoint, in such Manner as the Legislature thereof may direct,” electors

for President and Vice President. U.S. Const. art. II, § 1, cl. 2. Moreover, the

Constitution specifies that “the Electors in each State shall have the Qualifications

requisite for Electors of the most numerous Branch of the State Legislature.” U.S.

Const. art. I, § 2, cl. 1; (providing qualifications for the House of Representatives); see

U.S. Const. amend. XVII (providing the same qualifications for the Senate). In no

place is authority given to state courts to countermand the decisions of these state

legislatures as they establish their election law.

This Court has recently emphasized the primacy of state legislatures in

creating election legislation. In Moore v. Harper, 600 U.S. 1, 10 (2023), this Court

confirmed that it is state legislators that have the primary, mandatory responsibility

to determine the election laws for their states. This Court made emphatically clear

“that state courts may not transgress the ordinary bounds of judicial review such that

they arrogate to themselves the power vested in state legislatures to regulate federal

elections.“ Id. at 36. The Elections Clause does not “exempt state legislatures from

the ordinary constraints” of state law, Id. at 34, but this Court was careful to remind

the parties of its “obligation to ensure that state court interpretations of that law do

not evade federal law.” Id. It is the state legislature’s authority which is preserved

and given primacy. As Justice Kavanaugh emphasized, “[f]ederal court review of a

state court’s interpretation of state law in a federal election case ‘does not imply a

disrespect for state courts but rather a respect for the constitutionally prescribed role

of state legislatures.’” Id. at 38 (Kavanaugh, J., concurring) (quoting Bush v. Gore,

531 U. S. 98, 115 (2000) (Rehnquist, C. J., concurring)).

Moore ultimately left unaddressed the full scope of the Elections Clause

standard. But it did make the outer bounds of that inquiry very clear. This Court left

no doubt that “state courts may not so exceed the bounds of ordinary judicial review

as to unconstitutionally intrude upon the role specifically reserved to state

legislatures by Article I, Section 4, of the Federal Constitution.” Id. at 37. The

Elections Clause may mean other things as well, but what it at least means is that

state courts may not go beyond “ordinary judicial review” to intrude on the decisions

of state legislatures. That is precisely what the Pennsylvania Supreme Court has

done here. In the face of a clear and unambiguous statutory mandate, it has

nonetheless altered the express command of the legislature. This Court has concluded

that “state courts do not have free rein” in conducting judicial review. Id. at 34, but

must instead be carefully bound by statutory text. The Pennsylvania Supreme Court

has taken just such free rein to radically reinvent a statute’s meaning, with national

consequences.

There is simply no textual justification for the Pennsylvania Supreme Court’s

ruling. By rejecting a clear statutory mandate, it “usurps the legislature’s

unmistakable directives and supplants them with a new procedure.” App. 50a-51a

(Mundy, J., dissenting). The ruling nullifies the Pennsylvania General Assembly’s

unambiguous command that provisional ballots must not be counted if the voter has

already voted by mail. 25 P.S. § 3050(a.4)(5)(ii)(F). This is a usurpation of the General

Assembly’s constitutional authority to set rules for federal elections and is ultra vires.

“[T]he Elections Clause expressly vests power to carry out its provisions in ‘the

Legislature’ of each State, a deliberate choice that this Court must respect.” Moore,

600 U.S. at 34. The Pennsylvania Supreme Court lacked authority to supplant

Pennsylvania law and interfere in the national election of the next President of the

United States.

CONCLUSION

For the foregoing reasons, Amicus Curiae the American Center for Law and

Justice respectfully asks this Court to issue a stay of the Pennsylvania Supreme

Court’s decision.

Respectfully submitted,