A Pa. Supreme Court race this fall could have big implications for the 2024 presidential election

HARRISBURG — Pennsylvania voters will elect a new state Supreme Court justice this fall — and some big 2024 presidential election decisions could be at stake.

The state Supreme Court has deadlocked on some election cases over the last year, so the November election to fill a vacant seat could determine how the court leans on voting issues.

Pennsylvania is again expected to be a crucial battleground state in the 2024 presidential election. In 2020, the state Supreme Court was at the center of election issues amid battles over mail ballots and former President Donald Trump’s false claims of voter fraud. Voting rights advocates expect similar challenges in next year’s election, especially if there is a rematch between Trump and President Joe Biden.

“If we see similar trends to what we saw in 2020, the state Supreme Court is going to be vital,” said Kyle Miller, a policy advocate in Pennsylvania for Protect Democracy.

Pennsylvania voters will choose in November between Carolyn Carluccio, a Republican and the first woman to serve as president judge of Montgomery County Court; and Dan McCaffery, a Democrat and Superior Court judge.

The Supreme Court’s potential influence over issues such as voting rights and abortion access have prompted both parties to pour money and resources into what is usually a low-turnout race.

The election will not change party control on the bench, which has had a 4-2 Democratic majority since the death of Chief Justice Max Baer last year.

However, the current six-member court has recently deadlocked on election cases, such as whether prohibiting undated mail ballots violates federal law. The new member of the court could be the deciding vote on similar issues.

“The Supreme Court has a very important role to play in voting rights,” said Marian Schneider, senior policy counsel for voting rights at the Pennsylvania ACLU. “A shift of one justice could really make a difference in enfranchising or disenfranchising voters in Pennsylvania.”

The state Supreme Court will need to decide cases on Act 77, the no-excuse mail voting law. That law has faced multiple challenges over the last few years from Republicans, despite being passed almost unanimously through the GOP-controlled legislature in 2019.

Counties and election-access advocates have been asking state lawmakers to pass additional language clarifying parts of the law, but most legislative attempts have failed thus far. That means decisions fall to the courts — especially in 2020, the first major test to the mail voting law.

“There’s still a lot of unaddressed issues from Act 77,” Miller said. “The legislature hasn’t, to this point, shown much interest in resolving them without adding more layers of scrutiny on top, like voter ID.”

The state Supreme Court received strong criticism from some Republicans in 2020 of judicial overreach, or legislating from the bench, around voting issues. For example, the court ruled in 2020 that counties could use ballot drop boxes and created a three-day extension for mail ballots to be received by counties past Election Day, due to fears that the national mail service was unable to deliver ballots on time.

Some Republican legislators unsuccessfully sued to have the mail voting law struck down. And some far-right lawmakers have introduced legislation to overturn the law.

Carluccio, the Republican running for a seat on the bench, said in a statement that Act 77 “is law, and I will uphold the law.”

“Changes in our election laws need to come from our Governor and Legislature,” Carluccio added. “There is no place for judicial activism on the Pennsylvania Supreme Court.”

Carluccio noted, however, that she believed the court previously ruled inconsistently on how counties should handle undated or incorrectly dated ballots.

The Inquirer previously reported that Carluccio told the Erie County Republican Party that she wanted a chance to rework Act 77.

McCaffery, the Democratic candidate, declined to comment on past or future mail ballot cases, citing judicial rules preventing judges from speaking about issues that may appear before them. However, he reiterated that Act 77 “was passed with broad bipartisan support and is designed to encourage voter participation.”

Voting rights advocates are already bracing for future legal challenges to Pennsylvania’s voting system.

Advocates said they expect more lawsuits about how — and if — counties can allow voters to fix errors on their mail ballots, and possible challenges to the use of drop boxes. They hope that federal courts will rule before the 2024 election on how the state should handle undated or improperly dated ballots.

The state Supreme Court will remain a final backstop against election deniers, too, advocates said, with the winner of the November election as the potential deciding vote.

Election deniers across Pennsylvania have in the last year turned to the recount process to disrupt the election certification process. Any three voters can file a petition requesting a recount if they suspect fraud, but do not need to specify what fraud they believe occurred or offer evidence, according to state law.

Miller, the policy advocate in Pennsylvania for Protect Democracy, said it’s likely that bad actors could seek recounts in counties across the state to delay the certification process of next year’s presidential election. All 50 states’ presidential electors need to meet by Dec. 17, so counties must certify their elections before then.

“State courts have a primary role in arbitrating our states’ constitution and how citizens are allowed to participate in democracy,” Miller said. “Voters should be choosing who they put on this court based on their willingness to uphold those principles and to err on the side of a ‘one person, one vote’ ideal we try to live up to in America.”