If you have been reading the paper, you know Rep. Cliff Bentz, the newly elected Republican representing Oregon’s 2nd Congressional District, objected to the certification of electors from Pennsylvania.
Should Bentz have done that? The state’s Democratic Party says he failed Oregonians. Did Bentz have a point? If he did, was it the right thing to bring it up?
Almost anything that happened in Washington, D.C., on Wednesday has been drowned out by the president of the United States inciting an attack by a mob on the legislative branch. Even before that, it was difficult to take any of the Republican challenges to the November election seriously. Most were not backed by the slimmest of facts. Courts rejected them. The challenges also threatened to disenfranchise millions of Americans, if not imperil the democracy.
Bentz was concerned about what happened with what’s called Act 77 in Pennsylvania. It passed the Legislature there in 2019. Among other things, it established universal mail-in voting in the state. If Pennsylvanians wanted to vote with a mail-in ballot, they could. They didn’t need an excuse. Other states have not been as swift as Oregon to allow that.
In September 2020, the Pennsylvania Supreme Court extended the deadline to accept absentee ballots in that state by three days after the Nov. 3 election to Nov. 6. The Pennsylvania secretary of state and others argued additional time was needed because of postal issues and backlogs related to COVID-19.
Bentz’s complaint was Pennsylvania’s secretary of state “and the state’s Supreme Court did not adhere to the statutes set forth by the legislature when they extended deadlines for the return of absentee ballots. This action violated the principles of Article II of the (U.S.) Constitution because the state legislature had not previously delegated broader authority to the secretary (of state).”
Lawyers with the support of President Donald Trump’s campaign effectively asked the U.S. Supreme Court to take up this particular Pennsylvania question twice. The court declined.
At least four conservative justices on the U.S. Supreme Court were, though, concerned about what the Pennsylvania Supreme Court did. “The provisions of the federal Constitution conferring on state legislatures, not state courts, the authority to make rules governing federal elections would be meaningless,” Justice Samuel Alito wrote, “if a state court could override the rules adopted by the legislature simply by claiming that a state constitutional provision gave the courts the authority to make whatever rules it thought appropriate for the conduct of a fair election.” Bentz made a similar argument.
Chief Justice John Roberts, who is also a conservative, did not side with those justices. He has made a different argument that state courts have the right to interpret the state’s constitution and laws. Others on the Supreme Court have believed voting accommodations could be warranted during a pandemic. New Justice Amy Coney Barrett did not participate.
So Bentz did bring up an arguably unsettled constitutional question. But was it then correct for him to object to the election results for Pennsylvania?
The voters spoke. The election was not close. The U.S. Supreme Court also spoke. It did not reach a clear conclusion in agreement with Bentz. Bentz could have let it go. It’s not as if the issue would be forgotten if he did not raise an objection on the House floor. He chose to stick to his convictions. Did he fail Oregonians?