Missouri A. G. signs onto brief urging Supreme Court to reject Pennsylvania mail-in ballots

(From Attorney General Eric Schmitt)

A coalition of 10 state attorneys general, led by Missouri Attorney General Eric Schmitt, today filed an amicus brief in Republican Party of Pennsylvania v. Boockvar, urging the Supreme Court of the United States to grant writs of certiorari and reverse a decision by the Pennsylvania Supreme Court allowing mail-in ballots to be received three days after Election Day, even without postmarks.

The brief can be found here: https://ago.mo.gov/docs/default-source/press-releases/2020-11-09---republican-party-of-pa-v-boockvar---amicus-brief-of-missouri-et-al---final-with-tables.pdf?sfvrsn=e8b821a6_2.

The brief begins with, “The Pennsylvania Supreme Court’s decision overstepped its constitutional responsibility, encroached on the authority of the Pennsylvania legislature, and violated the plain language of the Election Clauses.”

The brief makes three main arguments. First, that the Pennsylvania Supreme Court overstepped its authority and encroached on the authority of the legislature in ruling that ballots received three days after election can be accepted, including ballots with an illegible postmark or no postmark at all. 

Second, that voting by mail can create risks of voter fraud, including in Pennsylvania. And lastly, that the Pennsylvania Supreme Court decision exacerbated these risks of absentee ballot fraud.

For the first argument, the brief states that the decision by the Pennsylvania Supreme Court, “(1) admitted that the Legislature’s Election Day deadline was unambiguous, (2) conceded that the Election Day deadline was constitutional on its face, (3) relied on the slimmest of evidentiary rationales for its decision, (4) departed its own prior holding on the exact same question just a few months earlier, and (5) disregarded an admirably clear severability clause that was enacted by the Pennsylvania legislature for the very purpose of preventing Pennsylvania courts from making such post-hoc changes to Pennsylvania’s mail-in voting system.”

To illustrate the risks of voter fraud in mail in voting and absentee ballot voting, the brief cites several sources that all express the same concerns about mail in voting and absentee ballot voting, including the U.S. Supreme Court case Crawford v. Marion County Election Board, the Carter-Baker Commission on Federal Election Reform, the U.S. Department of Justice’s manual on Federal Prosecution of Election Offenses, the U.S. Government Accountability Office, and more. 

Additionally, the brief cites several previous examples of voter fraud by mail in or absentee voting, including:

In November 2019, the Berkeley, Missouri Mayor Ted Hoskins was indicted on five felony counts of absentee ballot fraud. Mayor Hoskins allegedly went to the homes of elderly residents to harvest absentee ballots and altered absentee ballots after he had procured them from voters;

In May 2020, the leader of the New Jersey NAACP called for a new election for a city council position in Paterson, New Jersey citing allegations of vote-by-mail fraud. 

In 2016, Hector Ramirez, a candidate for Assembly in the Bronx, was indicted on 242 counts related to voter fraud. Prosecutors alleged that Ramirez wrote his name in on forged absentee ballots;

A 2018 federal Congressional race in North Carolina was overturned after political operatives were indicted and arrested for absentee ballot fraud. The charges alleged that the operatives improperly collected and potentially tampered with ballots to swing the close election in their favor;

A 2016 State House race in Missouri was overturned and a special election was ordered after allegations of absentee ballot fraud surfaced.

The brief also cites previous examples of vote-by-mail or absentee ballot fraud, specifically in Pennsylvania, including:

In 2018, a Delaware County man was charged with voter fraud after admitting to signing the absentee ballot for a deceased voter;

In 2014, the ex-Harmar Police Chief pled guilty to voter fraud after he admitted to soliciting absentee ballots for his wife in a 2009 Democratic primary for township supervisor;

The brief then argues that the decision by the Pennsylvania Supreme Court exacerbated the risks of ballot fraud, stating, "First, it created a post-election window of time during which nefarious actors could wait and see whether the Presidential election would be close, and whether perpetrating fraud in Pennsylvania would be worthwhile. Second, it enhanced the opportunities for fraud by mandating, in a cursory footnote, that late ballots must be counted even when they are not postmarked or have no legible postmark, and thus there is no evidence they were mailed by Election Day. This decision created needless vulnerability to actual fraud and undermined public confidence in a Presidential election.”

Lastly, the brief notes recently decided Missouri election cases that dealt with potential election fraud, including Mo. State Conference of the NAACP v. State. In that case, the court concluded that, “fraud in voting by mail is a recurrent problem, that it is hard to detect and prosecute, that there are strong incentives and weak penalties for doing so, and that it has the capacity to affect the outcome of close elections.”

The brief finishes by urging the Supreme Court of the United States to grant the petitions for writ of certiorari, grant expedited review, and reverse the decision of the Pennsylvania Supreme Court.

“Free and fair elections are a cornerstone of our republic and make the United States the envy of nations across the globe. To keep those elections free and fair, we must ensure that every legal vote is counted and every illegal vote is not. To not do so would disenfranchise millions of Americans. That’s why my office led a coalition of 10 state attorneys general in filing this amicus brief to urge the Supreme Court of the United States to grant a writ of certiorari in Republican Party of Pennsylvania vs. Boockvar,” said Attorney General Schmitt.

Along with Missouri, attorneys general from Alabama, Louisiana, Arkansas, Mississippi, Kentucky, South Carolina, South Dakota, Texas, and Florida also signed on to the brief.