Once Amy Coney Barrett joins the Supreme Court, she could help decide a key Supreme Court case in Pennsylvania that mandates that mail-in ballots received within three days after Election Day be counted.
Last Monday, the Supreme Court upheld a decision by the Pennsylvania Supreme Court that allows the state to count mailed-in ballots received within three days after the Nov. 3 election, denying a request by the Pennsylvania Republican Party.
It’s a sensitive political issue nationally, considering that Pennsylvania plays an important role in the campaign strategies of President Trump and Democratic nominee Joe Biden. The winner of Pennsylvania’s 20 electoral votes is likely to be the next president. Trump won the state in 2016 by less than 1 percentage point.
With a Supreme Court seat open after the death of liberal icon Ruth Bader Ginsburg on Sept. 18, the court was evenly split. Barrett, a federal appeals court judge in Indiana, could join the high court as early as Monday night after her expected Senate confirmation vote.
The justices split evenly, 4-4, a ruling that mandated county election officials to receive and count mailed-in ballots that arrive up until Nov. 6, even if the ballots do not have a clear postmark, as long as there is no proof it was sent after the polls closed.
Four of the court’s conservative justices voted to grant the GOP’s request to block the state court’s decision, but Chief Justice John Roberts voted with the court’s three liberal justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor to deny the request.
Last Friday, though, the Pennsylvania Republican Party returned to the Supreme Court, saying that the state itself, in its previous briefing, requested the justices to issue a ruling on the merits of the dispute “as soon as practicable.” Additionally, the court’s “timely intervention, could provide desperately needed clarity and help states avoid the sort of last-minute changes in election rules this Court has consistently warned against.”
According to a Pennsylvania GOP consultant active in a prominent race this election cycle, Republicans seek Barrett’s elevation to the high court as its ninth justice in hopes that she might help reverse the decision the court made when it initially refused to take up the case brought forward by the Pennsylvania GOP.
“The Barrett confirmation will effect a rule … which is the fact that Pennsylvania is accepting ballots up to three days after the election. They don’t have to have a postmark. The signatures don’t have to match. Once she is confirmed, that would have a much bigger impact,” the GOP consultant told the Washington Examiner.
Sen. Pat Toomey, a Pennsylvania Republican who plans to vote to confirm Barrett’s nomination on Tuesday, told the Washington Examiner that he would only say that it is “not clear” how Barrett’s presumed confirmation will affect the Pennsylvania Republican Party’s case.
Sen. Bob Casey, a Pennsylvania Democrat, however, told the Washington Examiner that he hopes the court would not make another decision on the case.
“They’ve already made the decision on the initial stay because the only reason to refile would be they’d have another vote. I think it’s probably in the minds of a lot of voters who are paying attention to a court case about voting,” Casey said.
He added, “But I hope the court would say that ‘it’s too close to an election. We’re not gonna take the same exact case and revote it because we have another justice.’ And I would hope that Judge Barrett, would she be confirmed, she would recuse, but we’ll see.”
