Despite a pair of recent Supreme Court decisions about Pennsylvania’s mail-in-voting rules favorable to Democrats, justices made clear they could reconsider the issue before Election Day.
The court’s 5-3 ruling on Wednesday blocked an attempt by the Pennsylvania Republican Party to stop an extension of counting mail-in ballot three days after Nov. 3, as long as they were postmarked by the time polls closed. That followed a 4-4 decision on the issue last week, before the confirmation Monday night of Supreme Court Justice Amy Coney Barrett.
The newest justice said she didn’t participate in the latest ruling because she hadn’t had time to read through the legal briefs and other documents on the issue. But she could if Pennsylvania ballot litigation reaches the Supreme Court again by Tuesday, a distinct possibility with several lawsuits filed over the issue.
And Justice Samuel Alito wrote that he would have granted the GOP’s request to limit ballot counting after Nov. 3, disagreeing with a decision by the Pennsylvania Supreme Court.
“There is a strong likelihood that the State Supreme Court decision violates the Federal Constitution,” Alito wrote, referencing the Pennsylvania court’s decision to deny the GOP’s request.
“The provisions of the Federal Constitution conferring on state legislatures, not state courts, the authority to make rules governing federal elections would be meaningless if a state court could override the rules adopted by the legislature simply by claiming that a state constitutional provision gave the courts the authority to make whatever rules it thought appropriate for the conduct of a fair election.”
Alito, whose dissent was joined by Justices Clarence Thomas and Neil Gorsuch, made clear that the Supreme Court could still rule on the Pennsylvania court’s decision after Election Day.
“[The Supreme Court’s denial today] 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,” Alito wrote.
The majority, which included Justices John Roberts, Sonia Sotomayor, Elena Kagan, and Brett Kavanaugh, did not offer an opinion on blocking the GOP’s request.
Pennsylvania Attorney General Josh Shapiro, a Democrat, urged voters in Pennsylvania to cease mailing back ballots out of concern the Supreme Court could issue a ruling after Election Day voiding ballots not returned on time.
“The Commonwealth has taken careful steps to ensure all eligible Pennsylvania votes will be counted and to stave off further anticipated legal challenges,” he said. “We call on all voters to submit their mail-in ballots to a drop box or county election office as soon as possible.”
The fight over mail-in ballots has taken place for months, as Republicans, including President Trump, have long said the unprecedented amount of remote voting this election year opens the process up to fraud. Democratic activists and Republican attorneys general have wound up in court over how many ballots should be sent out, to who, and when they should no longer be counted.
Concerns that ballots that arrive in the mail after Election Day will no longer be counted have prompted Democrats from around the country to reverse on their previous push of the practice.
“I hope that people will not depend on the mail,” Democratic Speaker of the House California Rep. Nancy Pelosi said Wednesday during a press conference. “Even the Postal Service is saying it’s too late now to mail a first-class piece of mail, to take more than five or six days to reach its destination, it just speaks for itself.”
