ELECTIONS: WEIRD STUFF happens when legislatures don’t do their job. We saw it this week when the US Supreme Court (SCOTUS) gutted the Voting Rights Act (more below.) It’s the same at the state and local level. A Pennsylvania court decision this week illustrates.
PA’s election code was written in 1937. Although election technology has evolved over the last century, the election code is largely stuck in time. It is the legislature that passes/updates the election code. When they don’t, and a lawsuit hinges on the election code, the legislature is punting their responsibility. It is asking the court to fill statutory gaps using analogies that don’t fit. It’s like discussing complex questions about self-driving cars by comparison to the parts of a horse, says Corrie Woods of SCOPABlog.
PA allows public access to county election records, but not to “the contents of the ballot box and voting machine.” The question in Honey v. Lycoming Co. was whether the “cast vote record” (CVR) is/isn’t contents of the ballot box/voting machine. A scanner takes a picture of your ballot, tabulates your selections, and the ballot drops into a secured compartment. The CVR is a spread sheet format of all the ballots, but it isn’t literally in the ballot box or voting machine. The Court’s opinion was unanimous on this. Throughout the proceedings, the court suggested this is an area the legislature should address. Justice Wecht said that if citizens wanted a different balance between secrecy and public access, they would have to awaken “the slumbering General Assembly to its failure to modernize the language” more frequently than once a century.
The PA Supreme Court held the legislature accountable. That’s fundamental to the separation of powers. SCOTUS, however, is unaccountable because the US Congress will not hold it accountable by legislating.
Quoting “One First” by Steve Vladeck:
“…the [Supreme] Court’s three-step evisceration of the Voting Rights Act has been made possible not just by its personnel, but by the Court’s knowledge that there’s no universe in which Congress would meaningfully respond to its … contestable … interpretations of a statute Congress enacted, and then re-authorized, and then re-authorized again.
“A world in which Congress is willing to hold the Court accountable is one in which it would not only override these kinds of patently ridiculous interpretations of statutes, but in which the specter of such legislative reaction might lead the Court away from such interpretations in the first place…
“ The story of the Supreme Court’s evisceration of the Voting Rights Act is a story that wouldn’t have been possible with an institutionally responsive Congress. According to an exhaustive 2014 study by Matthew Christiansen and Professor Bill Eskridge, between 1980 and 2000, Congress passed more than 100 statutes at least parts of which overturned Supreme Court statutory interpretations with which it disagreed. But by the 2010s, the idea that Congress would react immediately and aggressively in response to statutory interpretations with which it disagreed had fallen by the wayside—as exemplified by Shelby County. It would have been quick work for a Congress invested in its own institutional authority to respond to Shelby County by re-enacting an updated coverage formula under section 4 of the VRA [Voting Rights Act.] That never happened—and the Supreme Court knew it was never going to happen.”
Two links with this post:
(1) A summary of the PA lawsuit Honey v. Lycoming Co
https://law.justia.com/cases/pennsylvania/supreme-court/2026/79-map-2024.html
(2) Steve Vladeck’s excellent blog “One First” (I subscribe and highly recommend it.)
https://www.stevevladeck.com/p/bonus-223-they-are-who-we-thought