The framers of the U.S. Constitution, remembering the recent war against an autocratic government, sought to ensure against a return to that evil. They, therefore, wisely divided the authority of the proposed new government into three separate, but interdependent, branches: legislative, executive, and judicial. The drafters of the Pennsylvania state Constitution did likewise.
In the days preceding the adoption of the Constitution, Alexander Hamilton argued that the judicial branch “from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.” Much has been written over the years in support of the notion of the judiciary being “the least dangerous branch”.
Today, however, there is good reason to believe that the judiciary is no longer the least dangerous branch, but rather is the most dangerous branch. That may be especially true in Pennsylvania where the state Supreme Court has assumed almost dictatorial powers, especially with regard to elections. It has not only usurped authority over congressional elections granted by the Constitution to the state legislature and Congress, but has also violated the state constitution by unilaterally amending state election law.
Today here is good reason to believe that the judiciary is no longer the least dangerous branch, but rather is the most dangerous branch.
For example, three years ago, the Pennsylvania Supreme Court held that the existing congressional districts violated the Pennsylvania Constitution. It then redrew the districts itself. While there is no doubt that the existing districts were the result of a partisan gerrymander, that gerrymander did not and could not violate the state constitution. In fact, there is not one word in the state constitution regarding the election of congressional representatives because they are federal officials, not state officials.
The U.S. Constitution quite clearly vests all authority with regard to congressional representation in the state legislatures, subject only to Congress. Section 4 of Article I states:
“The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”
Accordingly, only Congress has the authority to alter the regulations made by a state legislature regarding the election of representatives. The state courts cannot constitutionally draw congressional boundaries any more than they could give their states additional senators or representatives.
The state courts cannot constitutionally draw congressional boundaries any more than they could give their states additional senators or representatives.
In the 2020 Presidential election the Pennsylvania Supreme Court went even further in arrogating to itself the authority to establish election law. In October of 2019 the Pennsylvania legislature had enacted Act 77, which provided all qualified voters the opportunity to vote by mail without requiring them to demonstrate their absence from their voting district as required by the Pennsylvania Constitution. Pursuant to that provision, thousands of voters applied for and received mail-in ballots.
While in-person voters on Election Day are subject to a signature verification requirement, just prior to the 2020 election the Pennsylvania Supreme Court held that mail-in ballots were not subject to a similar requirement. The court reached its decision by granting a request from Kathy Boockvar, the former Secretary of the Commonwealth, to render a declaratory judgment that county election boards were prohibited from imposing one since there was no statutory requirement for one. In justifying its decision, the court said, “It is not our role under our tripartite system of governance to engage in judicial legislation and to rewrite a statute in order to supply terms which are not present therein, and we will not do so in this instance.”
Of course, in ruling that signature verification was prohibited, the court did engage in judicial legislation. The statute contains neither a requirement nor a prohibition of signature verification. Yet, at the request of a partisan political office holder, the court held that county boards of elections were prohibited from imposing one, only because the statute did not require one.
In another case arising under the same statute, the Pennsylvania Supreme Court once again rewrote a statute. In this case, they did so by disregarding the express language of Act 77. Claiming that it had “Extraordinary Jurisdiction,” to do so, the court extended the received-by deadline for mail-in ballots contrary to the express language of the statute. The court, of course, did not cite to any provision of the state constitution granting it such “extraordinary” authority.
It is questionable whether that branch of government which has the final word as to what the laws and constitutions say, and claims to have “Extraordinary Jurisdiction” to rewrite statutes, is the “least dangerous branch.” Arguably, when that branch, in conjunction with the executive branch, acts in a politically partisan manner, it may more accurately be termed the “most dangerous branch.”
Howard Lurie is Emeritus Professor of Law, Charles Widger School of Law, Villanova University.