Supreme Court leaves in place order requiring Pennsylvania to count absentee ballots after Election Day

A deadlocked Supreme Court on Monday let stand a lower-court ruling that requires Pennsylvania election officials to count absentee ballots received within three days after Election Day, Nov. 3, even if they are not postmarked. In two brief orders issued shortly after 7 p.m., the justices denied, without explanation, a request by Republicans to put the Pennsylvania Supreme Court’s ruling on hold. Four justices – Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh – indicated that they would have granted the Republicans’ request.

The order came in a lawsuit filed by the Pennsylvania Democratic Party that challenged various aspects of the state’s absentee-ballot system in light of the coronavirus pandemic. Last month, the Pennsylvania Supreme Court, citing a voting-rights provision of the state’s constitution, ordered several modifications to voting rules, including extending the deadline by which mail-in ballots must be received in order for them to be counted. Previously, that deadline was Election Day, but the state court ruled that ballots should be counted if they are received up to three days after Election Day unless a “preponderance of the evidence” shows that a ballot was mailed after Election Day. That means that ballots lacking clear postmarks may be counted if received by Nov. 6.

Republican legislators and the Pennsylvania Republican Party went to the U.S. Supreme Court on Sept. 28, asking the justices to block the portion of the Pennsylvania Supreme Court’s order that extended the mail-in ballot deadline. They argued that the state court’s ruling will allow ballots cast and received after Election Day to be counted, thereby violating federal election law, which establishes a single Election Day, as well as the U.S. Constitution, which gives state legislatures the power to set the time, place and manner of federal elections. If the justices did not step in, the legislators warned, the state court’s order “could destroy the American public’s confidence in the election system as a whole.”

Pennsylvania officials urged the justices to stay out of the dispute, dismissing the requests from the legislators and the Pennsylvania Republican Party as an effort to “supplant the Pennsylvania Supreme Court’s interpretation of Pennsylvania law” and “intrude upon Pennsylvania’s sovereignty.” And even if federal election law and the U.S. Constitution were at issue in the dispute, they continued, neither the Pennsylvania Republican Party nor the Republican legislators have a legal right to sue, known as standing. Furthermore, they argued, the state court’s order does not violate federal election law because, although it allows votes to be counted after Election Day, it does not allow votes to be cast after Election Day. Similarly, the order does not violate the U.S. Constitution because the state court determined that it was necessary to protect the rights of Pennsylvania voters under the state constitution – which, the justices have acknowledged, can limit the state legislature’s power under the U.S. Constitution’s elections clause.

The state told the justices that the Pennsylvania Supreme Court’s ruling should remain in place. But citing the need for “clarity and certainty for Pennsylvania and its citizens regarding the deadline for returning mail-in and absentee ballots for the upcoming General Election, as well as regarding the authority of the Pennsylvania Supreme Court to have final say over” Pennsylvania’s election laws, the state asked the justices to issue a ruling on the merits of the dispute “as soon as is practicable.”

To put the state supreme court’s ruling on hold, the Pennsylvania Republicans would have needed at least five votes. They fell one short of that total on Monday, with only four of the court’s five conservative justices indicating that they voted to block the Pennsylvania Supreme Court’s decision. That means that Chief Justice John Roberts presumably voted with the court’s three more liberal justices – Stephen Breyer, Sonia Sotomayor and Elena Kagan – to create a 4-4 deadlock and allow the state court’s ruling to stand. The decision was apparently not an easy one to reach: Although the requests to put the state court’s ruling on hold were fully briefed by Oct. 6, the justices did not act for nearly two weeks – an unusually long period of time for cases that come to the court in an emergency posture, as this one did.

This article was originally published at Howe on the Court.