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Justice Barrett Ducks, Kavanaugh Silent, Alito Emboldened as SCOTUS Leaves Pa. Mail-in Ballot Counting Extension Intact


A 5-3 U.S. Supreme Court on Wednesday refused to hear Pennsylvania Republicans’ expedited challenge of a state Supreme Court ruling, leaving in place an extension permitting mail-in ballots to be counted up to three days after Election Day in the key swing state.

Newly minted Justice Amy Coney Barrett noticeably ducked out of the Republican Party of Pennsylvania v. Boockvar decision, while fellow Donald Trump appointee Brett Kavanaugh kept silent. Meanwhile, the high court’s right flank consisting of Justices Samuel Alito, Clarence Thomas and Neil Gorsuch strongly suggested that this issue is far from over.

“The Court’s handling of the important constitutional issue raised by this matter has needlessly created conditions that could lead to serious post-election problems,” the trio of conservative justices began.

On Sunday, Pennsylvania Democrats filed a brief with the U.S. Supreme Court opposing Pennsylvania Republicans’ efforts to overturn the mail-in ballot counting deadline extension. By Tuesday, the Luzerne County Board of Elections filed a brief with the Supreme Court requesting Barrett’s recusal. Then, after outcry, the Luzerne County Council voted to withdraw the filing. In any event, they didn’t get a “recusal” from Barrett in this case or any other election case; Barrett didn’t participate because she wasn’t prepared to do so.

“Justice Barrett did not participate in the consideration of this motion because of the need for a prompt resolution of it and because she has not had time to fully review the parties’ filings,” the Supreme Court’s Public Information Office reportedly said in a statement.

Alito made sure to note that Pennsylvania Republicans were not necessarily completely out of luck:

Although the Pennsylvania Supreme Court rejected Petitioner’s request for that relief, we have been informed by the Pennsylvania Attorney General that the Secretary of the Commonwealth issued guidance today directing county boards of elections to segregate ballots received between 8:00 p.m. on November 3, 2020, and 5:00 p.m. on November 6, 2020. Nothing in the Court’s order today precludes Petitioner from applying to this Court for relief if, for some reason, it is not satisfied with the Secretary’s guidance.

That was not all Alito had to say, either, and legal observers promptly took notice.

Alito said that although he “reluctantly conclude[s] that there is simply not enough time at this late date to decide the question before the election,” that “does not mean” that the state Supreme Court’s decision to extend the deadline is out of the judicial woods. What’s more, Alito openly suggested the Supreme Court could order a “targeted remedy,” such as invalidating certain ballots:

That does not mean, however, that the state court decision must escape our review. Although the Court denies the motion to expedite, the petition for certiorari remains before us, and if it is granted, the case can then be decided under a shortened schedule. In addition, the Court’s denial of the motion to expedite is not a denial of a request for this Court to order that ballots received after election day be segregated so that if the State Supreme Court’s decision is ultimately overturned, a targeted remedy will be available.

Previously, Chief Justice John Roberts joined the liberal wing of the U.S. Supreme Court in rejecting the GOP’s application for a stay of the state ruling pending a SCOTUS appeal. The then-8-justice Supreme Court denied the application for the stay.

The order said that conservative Justices Thomas, Alito, Gorsuch and Kavanaugh would have granted the application for a stay. Chief Justice Roberts and Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan denied the application.

As Law&Crime noted before, the Supreme Court’s rules say that five justices must vote in order to grant a stay. On the stay application, we had a 4-4 tie. Only four justices are needed to grant a petition for a writ of certiorari, but that number goes up to five when the ask is an expedited appeal—as was the case here. In this case, the lineup was actually five justices against granting Pennsylvania Republicans’ petition to expedite, even though Barrett didn’t participate.

The Pennsylvania Supreme Court ruled in favor of Democratic state lawmakers in September, finding that mail-in ballots received within three days of Nov. 3 must be counted so long as the envelopes are postmarked by Nov. 3. The ruling also said that ballot envelopes received by Nov. 6 that are not postmarked at all would also be counted, unless a “preponderance of the evidence demonstrates that it was mailed after Election Day.”

Republicans argued that the state court ruling “clearly violates federal law and the United States Constitution.”

“By judicial fiat, that decision removed the principal method by which Pennsylvania structures its post-election process, permitting votes to be cast after Election Day and counted after Election Day,” the Republican lawmakers wrote.

Democrats said on Sunday that it would be “unthinkable” that “such weighty issues would be fully briefed and conclusively decided in just a few days” at SCOTUS. They argued that last-minute changes would be “severely unfair” to both Pennsylvania voters and election officials.

Pennsylvania Secretary of State Kathy Boockvar (D) issued guidance to county of boards of elections on Wednesday, since the case is still before the U.S. Supreme Court. The guidance directed elections boards to “securely segregate mail-in and civilian absentee ballots received by the county board before 8:00 p.m. on November 3 from those received via USPS after 8:00 p.m. on November 3 and before 5:00 p.m. on Friday, November 6.”

That guidance contained three bullet points:

1) All mail-in and civilian absentee ballots delivered by the USPS and received between 8:00 p.m. on Tuesday, November 3, 2020 and 5:00 p.m. on Friday, November 6, 2020 shall be kept separate and segregated from all other voted ballots.

2) The county boards of elections shall not pre-canvass or canvass any mail-in or civilian absentee ballots received between 8:00 p.m. on Tuesday, November 3, 2020 and 5:00 p.m. on Friday, November 6, 2020 until further direction is received. These ballots shall be maintained by the county board in a secure, safe and sealed container separate from other voted ballots.

3) For every ballot delivered to the county board by the USPS between 8:00 p.m. on Tuesday, November 3, 2020 and 5:00 p.m. on Friday, November 6, 2020, each county board shall maintain an accurate log of the date upon which the ballot was delivered by the USPS to the county board of elections. The log shall include (i) the name and address of the elector, (ii) the date of delivery by the USPS, (iii) whether the ballot return envelope has a legible postmark, and (iv) the postmark date, when present and legible.

[image via Tasos Katopodis/Getty Images]

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