The U.S. Supreme Court has denied the latest of several Republican challenges to Pennsylvania’s voting procedures. However, the justices left open a window for further challenges after the election.
That means there’s a chance a portion of the ballots that Pennsylvania receives could be invalidated in the days or weeks following Election Day — though it’s not clear if enough justices would support that decision for it to become majority opinion.
The decision relates to a ruling the state Supreme Court made in September. Due to mail ballot delays, state justices said counties can accept mail ballots that arrive up to three days after Nov. 3, so long as they were postmarked by 8 p.m. on Election Day.
The Pennsylvania Republican Party and GOP legislative leaders quickly appealed the decision up to the federal courts. First, they asked for the state court’s decision to be halted — particularly a component that allowed non-postmarked ballots received within the three-day post-election window to be counted.
After that request was struck down — four to four, by a Supreme Court that was down a member following Ruth Bader Ginsburg’s death — the state GOP filed an appeal based on the legal merits of the state court’s decision, and asked the justices to decide the case before the election.
They argued, among other things, that the state court unfairly created a new election deadline.
The court denied that request, not on the merits of the case, but because it had been filed too close to Nov. 3.
But in a statement, three conservative Supreme Court Justices made it abundantly clear that they believe the Republicans are in the right, and that they may revisit the case — and possibly call late-received votes into question — after the election.
“The [Pennsylvania Supreme] Court’s handling of the important constitutional issue raised by this matter has needlessly created conditions that could lead to serious post-election problems,” wrote Justice Samuel Alito in the statement, which was joined by Justices Clarence Thomas and Neil Gorsuch.
He added that the Pennsylvania court had “issued a decree that squarely alters an important statutory provision enacted by the Pennsylvania Legislature,” that it creates a “cloud” over the election, and that it “would be highly desirable” to rule on the issue pre-election because the issue is of “national importance.”
Alito concluded that while the three-day extension won’t be overturned before the election, Pennsylvania Republicans can appeal and request that any ballots received after 8 p.m. on Nov. 3 be “segregated.”
That, he wrote, would ensure that if “the State Supreme Court’s decision is ultimately overturned, a targeted remedy will be available.”
Rick Hasen, a law professor at the University of California at Irvine who analyzed the decision on his blog, wrote that it is a “theoretical possibility” that the justices could rule after the election that the late-arriving ballots should be thrown out.
He added, though, that the outcome seems unlikely, since Justices John Roberts and Brett Kavanaugh didn’t join their fellow conservatives’ statement, and so there aren’t five justices who appear to support that conclusion.
Newly-sworn-in conservative Justice Amy Coney Barrett didn’t join the ruling. The court’s public information office said it was because of “the need for a prompt resolution of it and because she has not had time to fully review the parties’ filings.”
Though it wasn’t precisely the ruling Pennsylvania Republicans wanted, GOP state Senate leaders were pleased with the direction the court’s conservative justices took in their assessment of the case.
“Segregating the ballots means our Constitutional concerns could still be addressed after the election,” Senate President Pro Tempore and Majority Leader Jake Corman said in a joint statement. “We are encouraged that Justices Alito, Gorsuch and Thomas indicated there was a ‘strong likelihood that the State Supreme Court decision violates the Federal Constitution’ and they may hear this case after the election.”
Ahead of the court’s Wednesday evening decision, and in apparent anticipation of it, Pennsylvania Secretary of State Kathy Boockvar issued guidance to election officials in all 67 counties, instructing them to segregate any ballots they receive between 8 p.m. on Nov. 3 and 5 p.m. on Nov. 6.
“The Secretary continues to defend the extension to ensure that every timely and validly cast mail-in and absentee ballot is counted,” the Department of State said in a statement. “Because this issue is still-pending before the U.S. Supreme Court, however, county boards of elections are directed to take the following action.”
Along with keeping the late ballots separate from the others, counties are not supposed to open or process them in any way, and are to keep them “in a secure, safe and sealed container.”
Counties are also supposed to log each ballot, including the name and address of the voter who sent it, the delivery date, whether it has a postmark, and the date of that postmark.
“We do not believe there will be any major impact,” a spokeswoman for Chester County said. “We anticipate a low volume of ballots coming in for the three days after the November 3rd deadline.”
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