Pennsylvania Must Separate Late Ballots, Supreme Court Says

Friday evening, the U.S. Supreme Court granted a request from Pennsylvania Republicans to ensure a future challenge to the ballot count in that state has a chance at success. Election officials in Pennsylvania were ordered to segregate late-arriving ballots immediately. Ballots that have arrived in the mail after November 3 are to be kept separate and counted separately if they are counted at all.  That separate counting is what will allow the votes to be recalled if a later court so commands.

PA Republicans went to the Supreme Court to ask for an injunction before the election. Their goal was to have a Pennsylvania Supreme Court decision – which re-wrote ballot submission deadlines – overturned. The State Election Code’s “received-by deadline” requires mail-in and absentee ballots to be returned to county election boards no later than 8:00 p.m. on election day to be valid.

Democrats contended “that strict enforcement of this deadline, in light of the current COVID-19 pandemic and alleged delays in mail delivery by the USPS, will result in extensive voter disenfranchisement in violation of the Pennsylvania Constitution’s Free and Equal Elections Clause.” Democrats on the partisan Pennsylvania Supreme Court were convinced and ruled that ballots arriving as late as Friday evening were to be counted, provided they were postmarked by November 3.

Because the election was nearly upon us, the U.S. Supreme Court rejected two chances to change the law created by the Pennsylvania Supreme Court. The first was the injunction request, and the second, a request for a hearing on the merits – but expedited before the elections. Republicans lost on procedural grounds, but the Court said they could return, with the possibility of an expedited hearing after the election, which may still come.

Justice Alito was the only Justice to rule on this order because he handles emergency petitions to the Supreme Court for that geographic area. He concluded the Court’s ruling by saying: “I am immediately referring this application to the Conference and direct that any response be filed as soon as possible but in any event no later than 2 p.m. tomorrow, November 7, 2020.”  The “Conference” means the full Supreme Court, which now counts Amy Coney Barrett amongst its members. We’ll have to see how she rules, if at all, in the case involving President Trump’s re-election.

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Read more from Scott D. Cosenza.