While the Republican Party and the Trump campaign continue to insist they have a fighting chance to win victories in the courts that could overturn the results of the 2020 presidential election, the U.S. Supreme Court increasingly looks like it will not allow itself to be used as one of those swiftly-dwindling fields of battle.
In early November, Pennsylvania Republicans asked the nation’s high court to segregate mail-in ballots that arrived after Election Day. Fashioned as an emergency application for an injunction pending full review, Keystone State GOP leaders also asked for those ballots not to be counted until their legal challenges played out fully and finally made their way to the nine justices themselves.
“In short, an order from the court is badly needed,” the original application reads. “But given some county boards’ refusal to confirm that they are segregating ballots and the [Pennsylvania Secretary of State Kathy Boockvar‘s] changing guidance, an order requiring segregation of ballots may not suffice to preserve [the Republican Party of Pennsylvania’s rights.”
The filing goes on to detail the relief sought:
[The Republican Party of Pennsylvania] therefore now asks the court for an order directing respondents Secretary of State Boockvar and the county boards of elections, pending certiorari review or further order of the court, to log, to segregate, and otherwise to take no further action related to any mail-in or civilian absentee ballots received after the General Assembly’s received-by deadline.”
Recall: the filing was made with the U.S. Supreme Court after the Pennsylvania Supreme Court ruled that mail-in ballots received within three days of Election Day will be counted and are presumed to have been mailed.
An effort to stay that state court ruling was rejected by the justices on a 4-4 vote with archconservative Justice Samuel Alito giving the GOP hope by directing county board to ensure that such ballots are segregated—despite no evidence supporting the idea that this wasn’t already happening. Legal observers reading the tea leaves here saw a potential avenue for the full court to take up the case due to the math and Alito’s handling of the situation.
Briefing quickly commenced and wrapped up by the Monday following Election Day, November 9, 2020. And, notably, as of this writing, the Supreme Court has yet to issue any clue as to how they plan to treat the GOP’s somewhat extraordinary request.
At least one legal commentator believes the silence speaks volumes.
“Today marks two weeks since briefing was complete on PA Republicans’ application to #SCOTUS for an *emergency* injunction to prevent PA from counting late-arriving mail-in ballots,” noted University of Texas Law Professor Steve Vladeck via Twitter.
“The court’s said *nothing*,” he continued. “That’s a pretty powerful sign that it has no interest in stepping in.”
Supreme Court attorney Thomas Che Goldstein was skeptical that the court would take up the cause from the start.
“[I]t does not seem that an injunction is necessary here,” he wrote in an article for SCOTUSBlog on November 7, 2020. “First, these votes are beyond exceptionally unlikely to make a difference. The election has been called. In turn, it is very unlikely that the court is going to hear the challenge to the Pennsylvania Supreme Court’s ruling.”
Goldstein also noted the potential pitfalls for the federal judiciary should the high court succumb to the requested vote-tossing scheme.
“[I]f the court grants an injunction, the president and his supporters will use that order as part of an effort to delegitimize the election,” he said. “Democrats will use it to delegitimize the court itself.”
And for Chief Justice John Roberts, an institutionalist with a dedicated and well-trained ear toward political winds and the legitimacy of his life’s work (the broader conservative movement independent of President Donald Trump) at stake, the smart money is listening to the silence as a tell-tale proof of concept.
[image via Samuel Corum/Getty Images]
