How Amy Coney Barrett could be key to new lawsuit to block Pa.’s mail-in ballot extension

(Margo Reed/Philadelphia Inquirer)

(Margo Reed/Philadelphia Inquirer)

This article is made possible through Votebeat, a nonpartisan reporting project covering local election integrity and voting access. This article is available for reprint under the terms of Votebeat’s republishing policy.

A new federal lawsuit seeks to block Pennsylvania officials from counting mail-in and absentee ballots received within three days after Election Day, an extension approved by the state’s highest court and recently allowed to stand by the U.S. Supreme Court.

The latest challenge came as the state’s top elections official, Kathy Boockvar, urged voters not to count on the extension, and instead mail in their ballots right away to get their votes counted.

“I want to make it clear, I honestly don’t care what the Supreme Court said or didn’t say,” Boockvar said Wednesday. “Ballots need to be mailed. If they’re going to be put in the mail, they need to be put in the mail this week. If they need to be dropped off, it needs to be done on Nov. 3.”

In the latest lawsuit, filed Thursday in federal court in Pittsburgh, a Republican congressional candidate and four voters argue that extending the deadline was unconstitutional, and the state Supreme Court overstepped its authority when it enacted the change.

“Despite the exclusive grant of authority to the state legislatures to regulate the ‘time, place, and manner’ of federal elections and the ‘manner’ of selecting presidential electors, the Pennsylvania Supreme Court usurped this authority,” the lawsuit from Jim Bognet, who is running for Congress in northeastern Pennsylvania, and the four voters states. “This is unlawful under both the Elections Clause and the Presidential Electors Clause.”

The lawsuit is the latest in a series of high-profile legal challenges in the run-up to the election in Pennsylvania, which could be pivotal in deciding who wins the presidency. Last month, a majority of state Supreme Court justices issued a sweeping decision that set the tone for how Pennsylvanians can vote under the state’s year-old law that greatly expanded mail-in voting.

Among other changes, the high court, where Democrats hold the majority, allowed counties to receive and count mail-in ballots that arrive by 5 p.m. on Nov. 6, or three days after Election Day, as long as they are postmarked by Nov. 3.

The justices also took it a step further, saying that counties could count ballots if the postmark was illegible or missing, as those ballots would presumably have had to have been sent by Election Day to arrive in time to meet the Nov. 6 deadline.

Bognet and the four voters argue that state legislatures, not the courts, have jurisdiction over setting or changing election law, echoing criticism by Republican lawmakers and other GOP officials who believe the high court is wrongly wading into legislative territory.

This is not the first time Republicans have tried to block the three-day extension. This past Monday, the U.S. Supreme Court narrowly declined to block the extension as requested by the state GOP. The justices deadlocked 4-4 on whether to take the case, resulting in the rejection.

Four conservative justices — Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh — sought to grant the request. Chief Justice John Roberts sided with the three remaining liberal members of the court.

But the justices did not explain their reasoning, and the latest lawsuit could potentially end with a different result if appealed to the high court. With the U.S. Senate set to quickly confirm Judge Amy Coney Barrett to replace Justice Ruth Bader Ginsburg, it’s possible the conservative bloc would have enough votes to intervene and put a stop to the ballot deadline extension.

Questioned by Democratic senators during her confirmation hearing, Barrett would not commit to recusing herself from cases involving the election.

In addition to arguments over constitutionality, the voters behind the latest challenge, who in the lawsuit noted they are all planning to vote in person on Election Day, argue their votes will be diluted by the deadline extension. They contend that by accepting ballots with an illegible or missing postmark, Pennsylvania will “inevitably” count ballots that were dropped in the mail after Election Day.

Tom Spencer, vice president of the Lawyers Democracy Fund who served as a recount lawyer for Republican George W. Bush in the 2000 election against Democrat Al Gore, said the voters’ argument that they would be disenfranchised is a strong one, and makes this lawsuit different from the state Republican Party’s earlier lawsuit, which focused primarily on who held the power to change when and how an election is held.

He said the U.S. Supreme Court has traditionally urged lower courts not to get involved in election-related lawsuits so close to an election, but these are extraordinary circumstances, and he expects the federal district court to grant a hearing in the case quickly.

Should the lawsuit reach the U.S. Supreme Court, Spencer — a Republican lawyer — said people shouldn’t assume Barrett would swing the court toward a different ruling.

“I think a lot of people presume that the new justice would go their way, so to speak, but there’s a lot of precedent that the justice would have to look at very carefully,” he said. “It’s a very, very important decision, so I would expect a tremendous amount of study and then a decision on the merits, not a political decision.”

Alan Clark, one of the voters who brought the suit, said he opposed ballots being accepted after the 8 p.m. deadline, regardless of whether they were postmarked on time.

“Every four years, there’s a vote that kind of decides what direction the country goes (in) and if you can’t take time out of your day to get it done on time, then I’m sorry, your vote shouldn’t count,” Clark said.

He and his wife Jennifer Clark, who is also named in the lawsuit, moved to Somerset County in 2018 from Florida. Clark, 40, said he was concerned counting late ballots would lead to “chaos” as seen in the 2000 recount in Florida.

Bognet’s campaign said in a statement the state Supreme Court’s decision “will deprive the people of my district in Northeast Pennsylvania of a fair and legitimate process that they can trust.”

“All we are asking is that the election follow the rules that the legislature passed and the governor signed.”

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