Supreme Court Tie Gives Pennsylvania More Time to Tally Some Votes
A 4-to-4 tie let stand a ruling from Pennsylvania’s highest court that had extended the deadline for counting some mailed ballots by three days, citing the pandemic and postal delays.
WASHINGTON — The Supreme Court on Monday let stand a ruling by Pennsylvania’s highest court that allowed election officials to count some mailed ballots received up to three days after Election Day. The state is a key battleground in the presidential election.
The Supreme Court’s action was the result of a deadlock. It takes five votes to grant a stay, and the Republicans who had asked the court to intervene could muster only four: Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch and Brett M. Kavanaugh. On the other side of the divide were Chief Justice John G. Roberts Jr. and the court’s three-member liberal wing: Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.
Neither side gave reasons. The result suggested that Judge Amy Coney Barrett, whom President Trump nominated to replace Justice Ruth Bader Ginsburg after her death last month, could play a decisive role in election disputes. Judge Barrett is expected to be confirmed next week.
The Pennsylvania Supreme Court ruled that the three-day extension was required by the coronavirus pandemic and delays in mail service, and it ordered the counting of ballots clearly mailed on or before Election Day and of those with missing or illegible postmarks “unless a preponderance of the evidence demonstrates that it was mailed after Election Day.”
The decision also removes one more legal hurdle facing elections in Pennsylvania, where numerous voting-related lawsuits are undecided, including whether election officials will have to perform signature matching on absentee ballots.
Two Republican state lawmakers and the Republican Party of Pennsylvania asked the U.S. Supreme Court to block the state court’s treatment of ballots without legible postmarks. The lawmakers wrote that the state court’s ruling was “an open invitation to voters to cast their ballots after Election Day, thereby injecting chaos and the potential for gamesmanship into what was an orderly and secure schedule of clear, bright-line deadlines.”
“In a year where there is a very real possibility that the final presidential election result hinges on Pennsylvania, the new rules imposed by the decision of the Supreme Court of Pennsylvania (a body elected in partisan elections) could destroy the American public’s confidence in the electoral system as a whole,” the brief said.
The U.S. Supreme Court has not hesitated to block orders from federal judges that sought to alter state rules for conducting elections. In April, for instance, the justices, dividing 5 to 4, overturned a federal judge’s order that had lengthened a deadline for absentee voting in Wisconsin.
“Extending the date by which ballots may be cast by voters — not just received by the municipal clerks but cast by voters — for an additional six days after the scheduled Election Day fundamentally alters the nature of the election,” the unsigned opinion in the Wisconsin case said.
Rulings from state courts present more difficult questions, as the Supreme Court generally defers to them in cases concerning interpretations of state law and the Constitution empowers state legislatures to set the times, places and manner of congressional elections.
In a second brief, the Republican Party of Pennsylvania argued that “the Constitution reserves a special role for state legislatures in federal elections,” one that cannot be overridden by state courts. The brief relied heavily on the Supreme Court’s decision in the cases culminating in Bush v. Gore, the 2000 ruling that handed the presidency to George W. Bush.
“By extending the deadline by judicial fiat and establishing a presumption of timeliness that will allow voters to cast or mail ballots after Election Day,” the brief said, “the Pennsylvania Supreme Court has impermissibly altered both the ‘time’ and ‘manner’ established by the General Assembly” for conducting elections.
In response, Josh Shapiro, Pennsylvania’s attorney general, a Democrat, said a provision of the State Constitution protecting “free and equal elections” allowed the Pennsylvania Supreme Court to extend the deadline.
He added that the state court’s decision was “consistent with how Pennsylvania law handles military and overseas ballots timely cast but not received until after Election Day.”
Later Monday, in Tennessee, a federal appeals court exempted first-time voters from having to appear in person at the polls on Nov. 3 if they registered online or by mail, as required by a state law, which critics said would endanger residents during the pandemic.
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