From one perspective, it was only a matter of time before the Pennsylvania Supreme Court slapped down the election officials in a handful of Democratic-dominated counties for attempting to count—in tallying final results for the November 2024 election—mail-in ballots that, although properly signed and timely received, had not been properly dated. After all, the state supreme court had already made clear in 2023 that the best reading of the text of the election code passed by Pennsylvania lawmakers foreclosed the counting of ballots that were undated or misdated. And bizarre statements by a Bucks County official, in particular, seeming to suggest her belief that she could do whatever she wants because, as she put it, “I think we all know that precedent by a court doesn’t matter anymore in this country,” and “people violate laws anytime they want,” didn’t help things. (She has since apologized for this indefensible assertion.)
Yet from another vantage point we think it’s fair to say that when the state high court stepped in on Monday and ordered all 67 county boards of elections not to count undated/misdated ballots, it did not acquit itself particularly well either. The short unsigned opinion for a majority of justices effectively accused Bucks County officials and others of failing to “COMPLY with the prior rulings of the Court” (emphasis in original) regarding this matter, and yet no prior ruling by the high court actually held that local officials were legally forbidden from counting misdated ballots. Instead, as noted above, the court had held last year that the state statute required that votes not be counted absent an accurate signature, and had held, much more recently, that the state courts would for various pragmatic reasons not entertain lawsuits that claimed (quite plausibly, by the way) that the statutory requirement of an accurate date violated the state constitution, which, of course, prevails over anything in a statute that conflicts with it. (We say this argument is plausible since we see no purpose advanced by a requirement that a ballot that is accurately signed and timely received also be correctly dated; if the ballot is timely received, it was obviously filled out and submitted during the relevant and proper election time period. Accordingly, the state’s failure to count these misdated or undated ballots could easily run afoul of state constitutional protections of the right to vote and have one’s vote counted.) So when the high court in September vacated on technical grounds (due to the plaintiffs’ failure to name the proper defendants) a lower court ruling that had required, under the state constitution, that local election officials must count misdated or undated ballots, the high court did no more than remove a mandate that the votes shall be tallied. But removal of a requirement of something is, of course, not the same as prohibition of that thing.
That brings us to the nub of the matter, which is whether state executive officials in Pennsylvania are allowed, under the state constitution, to decline to enforce a statutory provision (in this case the provision requiring an accurate date on a ballot) if the executive officials conclude that the provision violates the state’s highest law, the state constitution. The majority of Pennsylvania justices on Monday failed to say anything about that $64,000 question.
A concurring opinion for three of the seven justices (not a majority) did explain their view that “local election officials [lack] the authority to ignore Election Code provisions that they believe are unconstitutional,” and that the Pennsylvania Supreme Court has previously held that “administrative agencies like county boards of elections . . [do not have] the authority to declare unconstitutional the very statutes from which they derive their existence and which they are charged to enforce.” It’s easy to see that a limitation on local officials’ power in this context, preventing them from going their own constitutional ways, would make good constitutional sense. After all, do we really want 67 separate counties interpreting the state constitution in 67 different ways?
But the concurring opinion went further, and proclaimed that “[o]nly the courts under our charter may declare a statute, or provision thereof, [is] unconstitutional” (emphasis added). (For our purposes, we think “declare” here means declare or “act upon a belief that.”) Under this very broad reasoning, not even a state-level executive official, like a secretary of state or a governor, can, in Pennsylvania, base an action or an inaction on a belief that a statute is unconstitutional. And that would be true even if (as was the case with respect to the undated-ballot provision) there was no state appellate court ruling already upholding the constitutionality of the provision in question. (The only Pennsylvania appellate ruling on this provision was, as noted earlier, vacated by the state supreme court in September, and that lower appellate court had found the accurate-date requirement was in fact unconstitutional.)
We are not experts on the Pennsylvania constitution, so we can’t say confidently what the best way to understand Pennsylvania’s fundamental charter is. But we do find this “only courts can interpret the law” notion to be problematic, and problematically common among American judges. Two decades ago, for example, in rejecting a claim that then-Mayor (now Governor) Gavin Newsom had power to disregard state laws prohibiting same-sex marriage, on the ground such laws violated the state or federal Constitutions, the California Supreme Court said a lot—perhaps too much—about the limits on the authority of the executive branch, writ large, to interpret constitutions. There, as in Pennsylvania, the court might have said simply that local executive officials—such as mayors—who are part of a statewide hierarchical system, lack such power to act on constitutional interpretations on matters (like marriage) that affect the rights of citizens throughout the state. But a broad rejection of all executive power to decline to enforce based on constitutional objections was not obviously sound.
In the California case, Justice Kathryn Werdegar pushed back—criticizing in particular a passage in which the majority intimated that even the President lacks the power to decline to enforce a ministerial law on the ground that he thinks it is unconstitutional. The California court quoted an 1838 United States Supreme Court case for the proposition that “to contend that the obligation imposed on the president to see the laws faithfully executed implies a power to forbid their execution is a novel construction of the constitution, and entirely inadmissible.”
But more recent authority from the U.S. Supreme Court indicates that the President may indeed sometimes have that power. For instance, as then-Assistant Attorney General (and later acting Solicitor General) Walter Dellinger observed in a 1994 memo, “Opinions dating to at least 1860 assert the President’s authority to decline to effectuate enactments that the President views as unconstitutional. . . . More recently, in Freytag v. Commissioner, all four of the Justices who addressed the issue agreed that the President has ‘the power to veto encroaching laws. . . or even to disregard them when they are unconstitutional.’”
The reflexively broad rejection by state courts (in California, Pennsylvania and elsewhere) of executive power to engage in constitutional review (that is, to interpret the constitution and enforce its meaning even when other bodies of law, such as statutes, conflict with it) seems to rest in part on a practical assessment of the aptitude of executive officers to make constitutional judgments without the benefit of prior judicial guidance. The California court, for example, remarked, “Certainly attorneys have no monopoly on wisdom, but a person trained for three years or more in a college of law and then tempered with at least a decade of experience within the judicial system is likely to be far better equipped to make difficult constitutional judgments than a lay administrator with no background in the law.”
But the comparison between the aptitude of courts and the aptitude of executive officials is a false one. The real comparison ought to be between the aptitude of the legislature that passed the statute in question, and the executive official who wants not to enforce it. Legislators are no more likely than executive officials to be learned lawyers. Yet the state jurists’ suggestion in these cases is that all executive officials must obey statutes that legislatures (apparently) think are constitutional, even though no court has yet validated them.
To put the point another way, the “presumption of constitutionality” that attaches to each legislative statute—and which does much work, whether explicitly or implicitly, in the courts’ reasoning in cases like these—is itself undermined by a functional analysis of the legal sophistication of the relevant actors; there is no reason to believe that a legislature’s instincts about what is constitutional are likely to be any better than an executive official’s.
Indeed, many executive officers throughout American history have been among the most talented and insightful constitutional lawyers. Perhaps the best example is President Abraham Lincoln, who—we daresay—was a more sophisticated constitutional lawyer and thinker than anyone on the U.S. Supreme Court during his day.
Why do state courts’ disparagement of the capacities of all executive officials to make constitutional judgments matter? Because it is but one part of a pervasive court-centric perspective that has been repeatedly reinforced by the U.S. Supreme Court in recent decades, and that is now internalized by all the key institutional actors, including high-level executive officials themselves.
Similar rhetoric and reasoning—when extrapolated—leads to things like President George W. Bush signing a bill (the McCain-Feingold campaign finance reform proposal) into law even though he said (in his signing message, no less) that he thought the bill was unconstitutional, but that this question is for the courts rather than the executive branch to look at.
None of this is to suggest that when a court finds a statute to be unconstitutional and an executive official disagrees, she can disregard the court’s declaration or injunction. Constitutional review by multiple government actors is a one-way ratchet that operates to protect rights and limit government power whenever any of the branches thinks that action by government would violate individuals’ constitutionally protected liberties.
As one of us put it in a recent amicus brief:
In many respects, our [federal] Constitution is decentralized and departmentalist. Many interpreters properly play a role. For example, in federal criminal law, each of six distinct entities can thwart criminal punishment if that entity alone has strong constitutional scruples. The House may refuse to vote for a criminal law it deems unconstitutional, regardless of what this Court thinks. Ditto for the Senate. In these scenarios, the naysaying legislative chamber plainly prevails, because no federal common law of crimes is allowed. A president may veto a criminal bill, or pardon all potential defendants, even before trial, and may do so on constitutional grounds that this Court rejects—much as President Thomas Jefferson effectively nullified judicial rulings on behalf of the Sedition Act of 1798. A grand jury may refuse to indict and may not be mandamused. A trial jury may refuse to convict, and judges may “strike down” a criminal law on its face or as applied. In general, this system is asymmetric. The entity with the stronger constitutional doubts/objections often prevails.
Nor is this account merely theoretical. Executive officials (like other branches) make decisions on a regular basis about how to act based on their understanding of constitutional requirements, and they do so with little likelihood of any court ever reviewing those decisions. Prosecutors routinely decide not to present evidence because they conclude that the evidence was obtained in violation of the Fourth Amendment. Recently, sheriffs and police officers in Illinois and other states have declined to enforce certain state weapons laws because, in their view, the laws violate the Second Amendment. State officials might give certain individuals or classes of individuals exemptions from generally applicable laws because they believe such exemptions are required by the Free Exercise Clause of the First Amendment. Public school officials might take a broader view of the First Amendment right of free speech and thus decline to discipline students for conduct that courts would not recognize as constitutionally protected.
If the decentralized and departmentalist conception makes sense (and we think it does) with respect to giving meaning to the federal Constitution, then the Pennsylvania (and California) high courts need to do a lot more by way of analysis and explanation before they reject power to engage in constitutional review as to state constitutions by any government actors besides judges.
