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Analysis: Why Missouri’s Eric Schmitt Jumped Into A Pennsylvania Election Battle

File | Jason Rosenbaum | St. Louis Public Radio
Eric Schmitt and fellow Republican state attorneys general have asked the U.S. Supreme Court to review a Pennsylvania case relating to mail-in ballots.

As legal challenges by the Trump campaign mount in the wake of President-elect Joe Biden’s victory, Missouri Attorney General Eric Schmitt is deploying his office in an attempt to stop some votes from counting in Pennsylvania.

On Monday, Schmitt and nine other Republican state attorneys general filed a brief asking the U.S. Supreme Court to reverse a Pennsylvania Supreme Court decision that allowed mail-in ballots received three days after the election to be counted, including those missing a postmark. Attorneys in Schmitt’s office took the lead on the amicus brief, with the other attorneys general co-signing their work.

Schmitt took to Twitter saying that in order to protect free and fair elections, “we must ensure every legal vote is counted & every illegal vote is not counted. To not do so would disenfranchise millions of Americans.”

“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,” Schmitt added.

Schmitt declined an invitation to discuss his actions on St. Louis on the Air. Instead, host Sarah Fenske talked with Ronald Levin, the William R. Orthwein Distinguished Professor of Law at Washington University, about whether precedent is on Schmitt’s side, and what might happen next.

The U.S. Supreme Court has yet to decide whether it will hear the case. “If they want to hear it they can,” Levin said. “And the ballots in question — the late-arriving ballots — have been isolated, so the court could theoretically decide that they’re not valid [and] disallow them.”

Ronald Levin is the William R. Orthwein Distinguished Professor of Law at Washington University.
Washington University
Ronald Levin is the William R. Orthwein Distinguished Professor of Law at Washington University.

But even if those ballots are thrown out, there still aren’t enough of them (about 10,000) to change the result for Biden in Pennsylvania.

“Biden is currently about 50,000 votes in the lead and probably growing, so anything the court might do in this case would not have any bearing on whether Biden would be elected president,” said Levin, who teaches a course on election law at Wash U.

Levin said he believes the Republican attorneys general filed the brief as “loyal members” supporting “the overall resistance to the election that Trump is coordinating.” But there may be another factor as well.

“I think they think that in the long run it will be good for them if the court hears this case, [that] even if it doesn’t affect the election, it would be good to get a precedent that state courts can’t [interfere] with what state legislatures have to say [when it comes to rules governing elections],” Levin said. “That could apply in the future, and at the moment Republicans control legislatures predominantly, so that might generally work to their long-term advantage.”

As far as Schmitt’s enthusiastic involvement in a legal battle outside the Show-Me State, Levin said it’s not as unusual as some may think.

“With the polarization of the country, we are seeing increasingly the attorneys general offices in the states taking the lead to challenge executive actions, and that is true on both the Republican and the Democratic side. So during the Trump administration you had a lot of attorney general offices challenging Trump policies — they were taking the lead.”

Levin gave the Affordable Care Act case currently before the U.S. Supreme Court as one example.

“You’ve got California and I think about 16 Democratic administrations defending the act, and about 19 Republican administrations including Schmitt’s office opposing it,” Levin said. “So it’s very widespread. But that said, I think this is an extreme example, because this is a case about Pennsylvania. Its effect on Missouri is very limited.”

St. Louis on the Air” brings you the stories of St. Louis and the people who live, work and create in our region. The show is hosted by Sarah Fenske and produced by Alex Heuer, Emily Woodbury, Evie Hemphill and Lara Hamdan. The audio engineer is Aaron Doerr.

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Evie was a producer for "St. Louis on the Air" at St. Louis Public Radio.