Former independent counsel Ken Starr testified at a Senate panel hearing that Pennsylvania’s last-minute changes to election laws before the Nov. 3 election were flagrant violations.
“The principle here is … [the] Constitution is very clear that it is the prerogative of state legislatures to determine what these rules and laws are,” Starr told the Senate Homeland Security and Governmental Affairs Committee on Dec. 16. “And that was, I must say, flagrantly violated in Pennsylvania, and perhaps elsewhere as well.”
Starr was answering a question from Sen. Rand Paul (R-Ky.) about whether, in the future, courts will rule that it was “wrong” for secretaries of state in Pennsylvania and other states to “change laws” about voting without the approval of legislatures.
“I think there is a possibility,” Starr said, describing the 2020 election as one with “an unprecedented use of mail-in ballots.”
“This issue may recur again,” he added.
Starr, a former prosecutor who led an impeachment investigation into former President Bill Clinton’s affairs, cited the Supreme Court’s ruling on Bush v. Gore in 2000. Starr previously served as a circuit judge, a solicitor general, and was part of President Donald Trump’s legal counsel during the Senate impeachment trial.
“Bush v. Gore stands for [the] basic proposition” that the United States “cannot have changes to election laws after the fact,” Starr told Paul and other members of the panel.
The Supreme Court ruling, by a 7–2 vote, stipulated that Florida’s Supreme Court decision that called for a statewide recount violated the Equal Protection Clause of the 14th Amendment of the Constitution. It was in reference to the presidential election between then-Republican candidate George W. Bush and former Vice President Al Gore.
Pennsylvania’s Act 77 law has come under scrutiny by Republicans, who in a lawsuit, claimed was a violation of the state Constitution. The 2019 law made voting by mail without an excuse legal in the commonwealth, but, according to Gov. Tom Wolf, was necessary to make “voting more convenient and more secure for millions of Pennsylvanians and continues my commitment to modernizing our elections.”
Republicans in their Supreme Court lawsuit contended that “Act 77 is the most expansive and fundamental change to the Pennsylvania voting code, implemented illegally, to date” and is merely an “illegal attempt to override the limitations on absentee voting” enshrined in the state Constitution.
The lawsuit, filed by Rep. Mike Kelly (R-Pa.) and other Republicans, stated that Wolf and other state officials didn’t follow the necessary procedure of amending the state Constitution, which would require far greater support from state lawmakers.
Attorneys representing Wolf and Pennsylvania Secretary of State Kathy Boockvar, both Democrats, said the law was necessary due to the CCP virus pandemic and also argued that it’s “simply too late to invoke the U.S. Constitution now” after the Nov. 3 election.
In early November, Starr noted that the state Supreme Court’s ruling, which allowed boards of elections to count mail-in ballots postmarked by Election Day if they were received as many as three days after, was a “constitutional travesty.”
“And what happened in Pennsylvania over these recent weeks is a constitutional travesty. Governor Wolf tries to get his reforms, his vision, as he was entitled to do, through the legislature of the Commonwealth of Pennsylvania,” Starr told Fox News at the time.
“He failed. He then goes to the state Supreme Court, which by a divided vote, accepted the substance of what Governor Wolf was doing, and then added thereon nooks and crannies as well.”