Nos. 20-542, 20-574

In the Supreme Court of the United States
_______________________________________________________________________________________________________________

REPUBLICAN PARTY OF PENNSYLVANIA,
Petitioner,
v.
KATHY BOOCKVAR, IN HER OFFICIAL CAPACITY AS
PENNSYLVANIA SECRETARY OF STATE, ET AL.,
Respondents.
_______________________________________________________________________________________________________________

JOSEPH B. SCARNATI, III, ET AL.
Petitioners,
v.
PENNSYLVANIA DEMOCRATIC PARTY, ET AL.,
Respondents.
ON PETITION FOR A WRIT OF CERTIORARI TO
THE SUPREME COURT OF PENNSYLVANIA
_______________________________________________________________________________________________________________

_______________________________________________________________________________________________________________

BRIEF OF AMICUS CURIAE OHIO IN
SUPPORT OF PETITIONERS
_______________________________________________________________________________________________________________

DAVE YOST
Ohio Attorney General
BENJAMIN M. FLOWERS*
*Counsel of Record
Ohio Solicitor General
MICHAEL J.HENDERSHOT
Chief Deputy Solicitor General
30 E. Broad St., 17th Fl.
Columbus, Ohio 43215
614-466-8980
bflowers@
ohioattorneygeneral.gov
Counsel for Amicus Curiae
the State of Ohio

 TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ....................................... ii
STATEMENT OF AMICUS INTEREST AND
SUMMARY OF ARGUMENT .............................. 1
REASONS FOR GRANTING THE PETITIONS....... 3
CONCLUSION............................................................ 7

 ii
TABLE OF AUTHORITIES
Cases

Page(s)

Ariz. State Legis. v. Ariz. Indep.
Redistricting Comm’n,
576 U.S. 787 (2015) ............................................... 3
Bush v. Gore,
531 U.S. 98 (2000) ................................................. 5
Colegrove v. Green,
328 U.S. 549 (1946) ............................................... 6
Democratic Nat’l Comm. v. Wis. State
Legis.,
592 U.S. __ (Oct. 26, 2020) .................................... 5
Mays v. LaRose,
951 F.3d 775 (6th Cir. 2020) ................................. 1
McPherson v. Blacker,
146 U. S. 1 (1892) .................................................. 5
Republican Party of Pa. v. Boockvar,
592 U.S. __ (Oct. 28, 2020) .................................... 4
Scott v. Sandford,
19 How. 393 (1857) ................................................ 2
United States v. Windsor,
570 U.S. 744 (2013) ............................................... 6
Williams-Yulee v. Fla. Bar,
575 U.S. 433 (2015) ............................................... 7

 iii
Statutes, Rules, and Constitutional Provisions
U.S. Const., Art. II, §1, cl.2..................................... 1, 3
Ohio Rev. Code §3509.05 ............................................ 1
Sup. Ct. Rule 37.2 ....................................................... 1
Sup. Ct. Rule 37.4 ....................................................... 1

 1
STATEMENT OF AMICUS INTEREST AND
SUMMARY OF ARGUMENT*
Ohio is not here because it objects, as a policy matter, to absentee voting. To the contrary, “[t]here is no
dispute that Ohio is generous when it comes to absentee voting—especially when compared to other
states.” Mays v. LaRose, 951 F.3d 775, 779–80 (6th
Cir. 2020). Ohio’s interest in this case also has nothing to do with any abstract concern about counting
ballots received after Election Day. In fact, Ohio itself
counts absentee ballots received within ten days of
Election Day, as long as those ballots are postmarked
by the day before Election Day. Ohio Rev. Code
§3509.05(B)(1).
Ohio is interested in this case because reversal is
crucial to protecting the Constitution’s division of authority over state election laws. The United States
Constitution says that “[e]ach State shall appoint”
electors “in such Manner as the Legislature thereof
may direct.” Art. II, §1, cl.2 (emphasis added). The
Pennsylvania legislature directed that electors for the
2020 election would be chosen through votes cast in
person and by absentee ballot. But it expressly mandated that absentee ballots would count only if received by 8 p.m. on Election Day. Pet.App.16a (quoting 25 P.S. §3150.16(a)). Instead of respecting that
decision, Pennsylvania’s Supreme Court rewrote state
law, ordering election officials to count ballots—including ballots with no postmarks or illegible postmarks—received within three days after Election Day.
*Ohio

notified all parties, through the parties’ attorneys, of its
intent to file this amicus brief more than ten days before its November 25, 2020 due date. See Rule 37.2(a). Ohio is filing this
brief pursuant to Rule 37.4.

 2
Pet.App.80a. This judicial policymaking unconstitutionally intruded on the legislature’s power to make
election law. To ensure that other courts in future
elections do not follow the lower court’s lead, this
Court must reverse.
The respondents and the commentariat will no
doubt insist that the Court’s involvement here would
be unduly “political.” No so. “[W]hen a strict interpretation of the Constitution, according to the fixed
rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are
allowed to control its meaning, we have no longer a
Constitution.” Scott v. Sandford, 19 How. 393, 621
(1857) (Curtis, J., dissenting). Nowhere is it more important to adhere to the “fixed rules [that] govern the
interpretation of laws” than in the context of a presidential election. See id. The results of such elections
have profound effects and inspire passions on all
sides. Those passions cool only to the extent the losers
can accept the results as reflective of the People’s will.
That acceptance will never come unless this Court ensures that Pennsylvania counts votes in the manner
that state law—and thus, the Constitution—requires.

 3
REASONS FOR GRANTING THE PETITIONS
The Pennsylvania Supreme Court violated the
Constitution when it extended the State’s deadline for
the receipt of absentee ballots in the 2020 general election. This Court should grant certiorari and make
clear that, under Article II’s Elections Clause, Art.II,
§1, cl.2, state legislatures, not state courts, set the
rules for picking presidential electors.
*
Reasonable minds can disagree about the merits of
absentee voting. So too can they differ about the merits of the many deadlines that govern voting generally
and absentee voting in particular. Thankfully, our
forefathers left us with the best-available tool for resolving these disagreements: representative government. In all fifty States, voters elect legislators to
make policy by enacting laws. And in all fifty States,
these legislators are free to resolve these policy disputes as they see fit. The States thus serve as “laboratories for devising solutions to difficult” problems.
Ariz. State Legis. v. Ariz. Indep. Redistricting
Comm’n, 576 U.S. 787, 817 (2015) (quotations omitted). Some of those solutions catch on. Some do not.
In either case, state lawmakers remain free to change
course—and dissatisfied voters remain free to change
lawmakers.
In the laboratory better known as Pennsylvania,
state legislators experimented with a number of new
policies that would govern the operation of the 2020
general election. In 2019, the legislature passed, and
the governor signed, a law known as Act 77, which for
the first time ever allowed no-fault absentee voting in
the Keystone State. See Pet.App.6a. In “Act 77, the
legislature permitted all voters to cast their ballots by

 4
mail but unambiguously required that all mailed ballots be received by 8 p.m. on election day.” Republican
Party of Pa. v. Boockvar, 592 U.S. __, slip op. 1 (Oct.
28, 2020) (Statement of Alito, J.) (citing 2019 Pa. Leg.
Serv. Act 2019–77). The law further “specified that if”
the Election-Day deadline “was declared invalid,
much of the rest of Act 77, including its liberalization
of mail-in voting, would be void.” Id. (citing Act 77,
§11).
The Pennsylvania Supreme Court, however, concluded that Act 77 did not go far enough, at least in its
application to this election. Given the difficulties associated with voting during a pandemic, the court concluded, ballots should be treated as timely if received
within three days after Election Day. Pet.App.48a.
The Court further determined that ballots received by
this deadline would be presumed timely even if they
contained no postmark or an illegible postmark.
Pet.App.48a, n.26. The Pennsylvania Supreme Court
“expressly acknowledged that the statutory provision
mandating receipt by election day was unambiguous
and that its abrogation of that rule was not based on
an interpretation of the statute.” Republican Party of
Pa., 592 U.S.__, slip op. 2 (Statement of Alito, J.). “It
further conceded that the statutory deadline was constitutional on its face.” Id. But the court changed the
law anyway, claiming a “broad power to do what it
thought was needed to respond to a ‘natural disaster.’”
Id. (quoting Pet.App.46a). The court “justified its decree as necessary to protect voters’ rights under the
Free and Equal Elections Clause” of the Pennsylvania
Constitution. Id.

 5
*
The Pennsylvania Supreme Court’s ruling violates
the United States Constitution. The Constitution
generally leaves States free to arrange governmental
authority within the State as they see fit. And in the
kiln-run case, nothing would stop a state court from
invalidating a state law under the State’s constitution. But this is not a kiln-run case: this is a case
about appointing electors for President of the United
States. That context matters, because “state courts do
not have a blank check to rewrite state election laws
for federal elections.” Democratic Nat’l Comm. v. Wis.
State Legis., 592 U.S. __, slip op. 9, n.1 (Oct. 26, 2020)
(Kavanaugh, J., concurring). To the contrary, the
Constitution “expressly provides that the rules for
Presidential elections are established by the States
“‘in such Manner as the Legislature thereof may direct.’” Id. (quoting Art. II, §1, cl. 2). Properly understood, this means “that ‘the clearly expressed intent of
the legislature must prevail’ and that a state court
may not depart from the state election code enacted by
the legislature.” Id. (quoting Bush v. Gore, 531 U.S.
98, 120 (2000) (Rehnquist, C.J., concurring)); see also
McPherson v. Blacker, 146 U. S. 1, 25 (1892). Here,
there is no dispute that the Pennsylvania Supreme
Court departed from the state election code—it expressly copped to doing so. Pet.App.43a. To let that
ruling stand would be to “abdicate” this Court’s “responsibility to enforce the explicit requirements of Article II.” Bush, 531 U.S. at 115 (Rehnquist, C.J., concurring).
The petitioners and the other amici have made
these arguments at length, and Ohio will not belabor
them. It is, however, worth making two additional
points.

 6
First, even if the Pennsylvania Supreme Court did
not violate Article II in rewriting Pennsylvania election law, it is important for this Court to say so. For
one thing, the Court has never definitively answered
the important question whether (or to what extent
and on what basis) state courts may depart from state
election codes. The States need an answer to that
question, which is certain to arise again in future elections. And it is important to provide that answer now
because, without a ruling from this Court, doubts will
continue to linger about whether the vote count in
Pennsylvania was performed in conformity with the
Constitution. Elections stoke passions on all sides.
Those passions can cool only when all sides are confident that the election was carried out pursuant to
rules laid down in advance and followed throughout.
This Court is the only one that can provide that assurance. Its failure to do so risks “cheat[ing] both sides,
robbing the winners of” the pride that comes from an
indisputably honest victory, “and the losers of the
peace that comes from a fair defeat.” United States v.
Windsor, 570 U.S. 744, 802 (2013) (Scalia, J., dissenting).
Second, the Pennsylvania Supreme Court’s ruling,
if allowed to stand, will serve as a model for a form of
adjudication that is bound to politicize state judiciaries. If this Court is unable or unwilling to enforce the
Elections Clause, partisan litigants will constantly
drag the state courts into election-law disputes, hoping to secure some advantage that they believe is beyond this Court’s authority to check. This will transform the state courts into powerful tools for altering
the results of presidential elections. Once state courts
enter the “political thicket,” Colegrove v. Green, 328
U.S. 549, 556 (1946), they will stay there. After all, if

 7
state-court judges are destined to make the policies
that determine elections, voters and their representatives will insist on having judges inclined to make
whatever policies favor their preferred candidates. In
so political a climate, it seems rather unlikely that
every judge will continue “striving to be ‘perfectly and
completely independent, with nothing to influence or
controul him but God and his conscience.’” WilliamsYulee v. Fla. Bar, 575 U.S. 433, 447 (2015) (quoting
Address of John Marshall, in Proceedings and Debates of the Virginia State Convention of 1829-1830,
p. 616 (1830)). To the contrary, politicized state courts
will behave politically. And state courts charged with
revising the rules of presidential elections will become
irreparably politicized.
CONCLUSION
The Court should grant certiorari and reverse.
Respectfully submitted,
DAVE YOST
Ohio Attorney General
BENJAMIN M. FLOWERS*
*Counsel of Record
Ohio Solicitor General
MICHAEL J. HENDERSHOT
Chief Deputy Solicitor General
30 East Broad St., 17th Fl.
Columbus, Ohio 43215
614-466-8980
bflowers@ohioattorneygeneral.gov
Counsel for Amicus Curiae
the State of Ohio
NOVEMBER 2020