The U.S. Supreme Court Monday evening denied a request from Pennsylvania Republicans to halt a voting extension the State Supreme Court recently implemented.
Election officials in Pennsylvania can now count absentee ballots received as late as Friday, November 6, so long as they are postmarked by November 3. Keystone State Republicans applied to Justice Alito for an emergency order in September to stop the Pennsylvania Supreme Court from unilaterally changing election law in the Commonwealth. Alito is assigned to handle emergency appeals from the 3rd Circuit, where Pennsylvania sits. He referred the application to the full Court, which denied it on Monday evening.
The denial order reads:
The application for stay presented to Justice Alito and by him referred to the Court is denied.
Justice Thomas, Justice Alito, Justice Gorsuch, and Justice Kavanaugh would grant the application.
That second sentence tells us the vote was 4-4 and that Chief Justice Roberts voted with the Court’s left-wing. Also, that the four named justices wanted the public to know they dissented – those names are listed at the justices’ request. Because there was a tie at the Supreme Court, the case will not be heard and the lower court ruling will stand. In this case, the lower court ruling came from the Supreme Court of Pennsylvania.
The seven justices in Pennsylvania are elected to the state’s Court and usually run on partisan tickets. The decision to give Democrats what they wanted – allow late ballots to be counted in contravention of the law – was made by a majority of the Pennsylvania Supreme Court. All four in the majority are Democrats. One Democrat and the two Republican justices dissented.
That ruling came down from a suit by Democrats, which asked the Court to order a change in election law. The State Election Code’s deadline for receiving ballots (“received-by deadline”) requires mail-in and absentee ballots to be returned to boards of election 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.” They won, and the PA Supreme Court re-wrote the law to say:
“[B]allots mailed by voters via the United States Postal Service and postmarked by 8:00 p.m. on Election Day, November 3, 2020, shall be counted if they are otherwise valid and received by the county boards of election on or before 5:00 p.m. on November 6, 2020; ballots received within this period that lack a postmark or other proof of mailing, or for which the postmark or other proof of mailing is illegible, will be presumed to have been mailed by Election Day unless a preponderance of the evidence demonstrates that it was mailed after Election Day.”
Republicans challenged the decision, arguing it violated multiple constitutional provisions, as well as federal law. They said, “Once the election has come and gone, it will be impossible to repair election results that have been tainted by illegally and belatedly cast or mailed ballots.” Because, “[a]fter all, the Court ‘cannot turn back the clock …’”
The decision on whether to hear cases often falls along ideological grounds, so having eight justices on the U.S. Supreme Court means a higher likelihood of cases not being heard. Amy Coney Barrett’s nomination is scheduled to pass through the Senate Judiciary Committee this week, and her confirmation by the Senate is likely, before election day. This means there will once again be nine justices and less chance of a tie.
Read more from Scott D. Cosenza.