Federal Judiciary

Court will not weigh in on Pennsylvania?s mail-in ballot deadline before election

By Amy Howe

The Supreme Court on Wednesday afternoon rejected a request by Pennsylvania Republicans to fast-track their challenge to a ruling by the Pennsylvania Supreme Court that requires election officials to count mail-in ballots received within three days after Election Day. Republican legislators and the Pennsylvania Republican Party had asked the justices on Friday to expedite consideration of their petition and rule on the merits of the case before Election Day. Although the justices turned that bid down, leaving the extended deadline in place for now, an opinion from Justice Samuel Alito seemed to leave open the possibility that the dispute may still not be over.

The Pennsylvania GOP asked the justices to review a decision by the Pennsylvania Supreme Court in a lawsuit filed by the Pennsylvania Democratic Party. Relying on a provision in the state?s constitution, the state supreme court extended the deadline for the receipt of mail-in ballots until Nov. 6. Under the state court?s ruling, all ballots that are received by that day will be counted if they are postmarked by Election Day, Nov. 3, or if they either lack a postmark or have a postmark that is not clear. Republicans want to reinstate the Nov. 3 deadline for mail-in ballots to be received.

The petition for review filed by the Pennsylvania GOP on Friday was the Republicans? second plea for relief from the Supreme Court in less than a month. The first came on Sept. 28, when the Pennsylvania GOP and Republican legislators asked the court to put the state supreme court?s ruling on hold. On Oct. 19, an equally divided Supreme Court ? which then had only eight justices ? denied that request, with four of the court?s conservative justices indicating that they would have granted it. Four days later, Republicans tried again ? this time by petitioning the justices to review the case on the merits and fast-track a decision.

In a brief order on Wednesday, the court turned down the Pennsylvania GOP?s request to expedite consideration of the petition for review. Alito filed a three-and-a-half-page statement regarding the denial of the motion that was joined by Justices Clarence Thomas and Neil Gorsuch ? who, like Alito, had previously voted to block the state court?s decision. Justice Brett Kavanaugh had also indicated last week that he would have put the decision on hold, but he did not join Alito?s statement on Wednesday.

Alito complained that the court?s handling of the case had ?needlessly created conditions that could lead to serious post-election problems.? Alito observed that the Pennsylvania GOP had asked the justices to stay the state court?s ruling and that, in earlier proceedings, the Pennsylvania Democrats had ?urged us to grant review and to decide the issue before the election.? But instead, Alito continued, the court turned them down.

?It would be highly desirable,? Alito argued, ?to issue a ruling on the constitutionality of the? Pennsylvania Supreme Court?s decision before the election. ?That question has national importance, and there is a strong likelihood that? the ruling violates the U.S. Constitution, he wrote. However, Alito conceded, ?there is simply not enough time at this late date to decide the question before the election.?

But although the court would not fast-track its consideration of the petition for review, Alito emphasized, it would still go on to consider the petition ? which could be decided ?under a shortened schedule? if granted. Moreover, Alito added, the state has directed county election boards to segregate ballots received after the polls close on Election Day but before the extended deadline, so that ?a targeted remedy? ? presumably, not counting those ballots ? would be available if the Pennsylvania Supreme Court?s decision ?is ultimately overturned.?

The court?s newest justice, Justice Amy Coney Barrett, did not participate in the disposition of the motion to fast-track consideration of the petition for review. The court?s Public Information Office indicated that Barrett had opted not to participate to allow the justices to act on the motion quickly and because she had not yet had an opportunity to fully review the filings in the case.

This article was originally published at Howe on the Court.

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Full post as published by SCOTUSBLOG on October 28, 2020 (boomark / email).