Judging Freedom - Fetterman files lawsuit over undated mail-in ballots

Episode Date: November 8, 2022

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Hi everyone, Judge Andrew Napolitano here for Judging Freedom. Today is Tuesday, November 8th, on the East Coast of the United States. Two election stories for you in my end of the world, since they both involve the courts. There's a very contentious race, as you may know, to succeed Senator Pat Toomey in Pennsylvania. I live right on the New York-Pennsylvania border, so I get a lot of Pennsylvania media here. And it's between a Republican, Dr. Mehmet Oz, whom I know from Fox, and Democrat Lieutenant Governor John Fetterman. The case is neck and neck. asking a federal judge to order the 62 counties in Pennsylvania to count absentee ballots that don't have a date or have the wrong date on the outside of the envelope. Now, this is very interesting litigation. Why? Because two days ago, the Supreme Court of Pennsylvania said, if the ballots don't have a date on them, or if the date is wrong, then the 62 county clerks should not count them. Okay, you'd think that that would be the law. It's the Supreme Court of Pennsylvania.

But the Supreme Court of the United States ruled last June that just because a ballot doesn't have a date on it or has the wrong date on it is not a reason not to count the ballot, that these people can vote again, or the clerks can assume that the date that they received it is the date that should have been written on it. So we have two courts looking at this differently, the Supreme Court of Pennsylvania, which is in charge of interpreting Pennsylvania law, the Supreme Court of the United States, which is in charge of interpreting federal law. So Lieutenant Governor Fetterman's lawyers sued in the right place. They sued in a federal court bound by the Supreme Court of the United States. Prediction, that federal judge will invalidate the decision of the Supreme Court of Pennsylvania and tell those 62 county clerks that they need

to count those ballots. Why? Because this is a federal as well as a state election, because federal law supersedes the state, and because the Supreme Court of the U.S. has the final say on the meaning of federal law. For me, it's an interesting and fascinating area where the state Supreme Court disagrees with the federal Supreme Court on the same area at the same time in the same election, and it's happening on election day. This might be moot if Oz wins by a large number or if Fetterman wins by a large number. On the other hand, it might spawn a Florida-like recount. Who knows? At the same time this is going on, the DOJ has dispatched monitors to 24 states, including New Jersey.

I'll tell you why I harp on New Jersey in a moment. Monitors to enter the polling places and make sure there's no intimidation. I voted a little while ago. I didn't see any federal monitors there. It's possible they were there and they didn't identify themselves, but small town where I live and where I vote and I knew everybody in the room and none of them as far as I know is suddenly employed by the federal government. The reason I point out New Jersey is because, well, the feds do have a duty to monitor elections, but only in the states governed by the Federal Voting Rights Act. And New Jersey is not one of them.

So the Joe Biden, Merrick Garland, Department of Justice has decided to spread its wings into areas where the statutes don't authorize it to go. So you're going to see Republican pushback. Now, again, this only becomes relevant in elections that are really close. But when Republicans push back and say, hey, we're in New Jersey, we're not governed by the Voting Rights Act, the feds have no right to come here, the Republicans are right. But in the states that the Voting Rights Act does cover, which are mainly the southern states of the United States, feds have the right to be there.

I think more will happen before the day is out, and you'll hear it more as we get it. Judge Napolitano for Judging Freedom.