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Bruce Howard and Alan Howard: Hawley's flawed legal argument against Pennsylvania's electoral votes

Bruce Howard and Alan Howard: Hawley's flawed legal argument against Pennsylvania's electoral votes

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Most agree that Sen. Josh Hawley’s argument that the Senate should have rejected the Electoral College votes certified by the Commonwealth of Pennsylvania was a gross affront to American democracy. But it was also wrong as a matter of federal law.

Hawley, of Missouri, argued that many mail-in votes in Pennsylvania should be disallowed because they were authorized by a broad state mail-in voting law adopted by the state legislature, notwithstanding a provision in the state constitution that Hawley alleged has been interpreted not to allow such broad mail-in balloting. (Although not relevant to our specific legal analysis, other Pennsylvania law experts have argued that Hawley was wrong in his interpretation that there exists a conflict between the Pennsylvania mail-voting law and the Pennsylvania constitution).

What is relevant to our analysis is that, when the state constitutional challenge was made by pro-Trump lawyers to the Pennsylvania Supreme Court, the court rejected it on the grounds that it was legally too late to challenge the Pennsylvania mail-in voting law. There is no federal statute or constitutional law provision authorizing any federal entity — be it a federal court or the Senate — to reverse the Pennsylvania Supreme Court decision.

That decision was solely a matter of state law. Neither the U.S. Constitution nor any federal statute states how a state court should decide whether a challenge to a state law is timely. And nowhere had Hawley stated that there is such a federal law. An application for injunctive relief against the Pennsylvania mail-in voting law was filed with the U.S. Supreme Court based on the same alleged conflict between the Pennsylvania legislation and the Pennsylvania constitution. The Supreme Court denied the application on Dec. 8. By trying to reargue the same issues before the Senate in early January, Hawley in effect tried to get the Senate to act as an appellate court to the Supreme Court and the Pennsylvania Supreme Court. That’s not the way the legal system works.

Notwithstanding failures in the Pennsylvania Supreme Court and the U.S. Supreme Court, Hawley seems to have suggested that the Senate ought to make its own independent decision to reject the voting results in Pennsylvania. But there is no basis in federal law, constitutional or statutory, to say that mail-in ballots, even mail-in ballots distributed to voters not first requesting them, are improper or illegal.

Many other states have been using such ballots in their elections, for president and otherwise, including in this presidential election, and no one, no senator, no representative, no court — federal or state — has ever found or suggested a federal statute or federal constitutional provision making them illegal. As a matter of federal law, it really shouldn’t matter to the Senate how and why the Commonwealth of Pennsylvania decided to allow its citizens to cast federally lawful mail votes.

In his objection to Congress accepting the Commonwealth of Pennsylvania’s certification of those electors’ votes for Joe Biden, Hawley was asking the Senate to throw out the electoral votes of Pennsylvania for employing a voting measure that complied with all applicable federal law and was widely used in this and other presidential elections, without a single legal objection.

One does not have to be an advocate of federalism and states’ rights to see that Hawley’s argument has no basis in federal law. This objection to Hawley’s argument might also explain why 92 U.S. senators, including most of Hawley’s fellow Republicans, voted against Hawley’s effort to reject Pennsylvania’s Electoral College votes.

Bruce Howard is a Los Angeles attorney and former law professor at the University of Southern California. Alan Howard is a professor of law emeritus at St. Louis University Law School.

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