Pennsylvania Democrats say the Supreme Court should not intervene in the state’s vote count, insisting that late-arrival mail-in ballots are highly unlikely to impact the presidential race in which former Vice President Joe Biden has pulled ahead of President Trump by more than 35,000 votes.
Many outlets have projected that Biden would win Pennsylvania and thus had amassed enough votes in the Electoral College to win the presidency, though Trump’s legal team has vowed to fight on in court.
Associate Supreme Court Justice Samuel Alito in a late Friday night ruling ordered Pennsylvania county election boards to segregate late-arrival ballots from the rest of the mail-in ballots. Earlier on Friday, the Pennsylvania Republican Party had called upon the U.S. Supreme Court to take up a case related to the extension of the counting of mail-in ballots to three days after Election Day.
The ballots had to be postmarked by the time polls closed on Tuesday, and the party asked the highest court in the land to order that those ballots be “segregated” and not counted at this time.
Republicans in October had failed to get the Supreme Court to intervene on the issue.
Pennsylvania’s Act 77 allowed its voters to cast their ballots by mail but required that all mailed ballots be received by 8 p.m. on Election Day to be counted. It had not changed that deadline during the coronavirus pandemic. But Pennsylvania’s Supreme Court said in a 4-3 ruling that mail-in ballots would not need to be received by Election Day, instead deciding that ballots could be counted so long as they were postmarked on or before Tuesday and were received within three days.
The Pennsylvania Supreme Court has likened the coronavirus pandemic to a “natural disaster” that would justify the deadline extensions.
The Trump campaign argues that the Pennsylvania Supreme Court lacked the power to extend the deadline for receiving mailed ballots. It argued this week that the Supreme Court should be the final arbiter after the high court decided late in October that it would not expedite its review of the matter before Election Day.
“The United States Constitution is clear on this issue: The legislature sets the time, place, and manner of elections in America, not state courts or executive officials,” Trump deputy campaign manager Justin Clark said on Wednesday.
Pennsylvania Attorney General Josh Shapiro filed a Saturday response with the Supreme Court on behalf of Secretary of the Commonwealth Kathy Boockvar, arguing that the Supreme Court should not intervene any further.
“There is no evidence that any county is disobeying that clear guidance to segregate these votes, and the Republican Party offers only speculation that certain unidentified counties may ignore that repeated guidance or that the Secretary will inconsistently change course,” Shapiro said. “In fact, as of this filing, 63 counties have already confirmed to the Secretary their compliance with the prior guidance, including the Commonwealth’s two largest counties [Allegheny and Philadelphia]. And no county has expressed an intention to violate the guidance.”
Alito did not rule that Pennsylvania would have to stop counting the votes, though, and said he’d confer with the rest of the Supreme Court about whether the high court would take any other action.
The Luzerne County Board of Elections, overseeing northeastern Pennsylvania’s most populous county, told the Supreme Court that it had already been complying with the order to segregate late-arriving votes and said such votes were small in number.
“It is likewise difficult to see how the ballots in question will have any relevance to the electoral outcome,” the county argued on Saturday. “Representing less than 0.2% of the total county vote, and while important that they be treated respectfully as every vote must, these late-ballots will certainly not sway the election results in any meaningful way.”
Amie Downs, a spokeswoman for Allegheny County, which includes Pittsburgh, told the Washington Examiner on Saturday: “In the three days, 1,045 total ballots were received. Of those, 947 are able to be counted. The votes have all been segregated, and we have followed all guidance. We have not counted anything.”
Kevin Feeley, a spokesman for Philadelphia’s city commissioners, told the Washington Post that the late arrival mail-in votes may be counted eventually but had been set aside due to the possibility of a legal fight. Philadelphia officials told the outlet that 500 such ballots arrived on Wednesday and Thursday but had been segregated.
Trump campaign lawyers repeatedly urged the Supreme Court to take up the Pennsylvania case this week, demanding that the late ballots be separated. “Given the results of the November 3, 2020 general election, the vote in Pennsylvania may well determine the next President of the United States — and it is currently unclear whether all 67 county boards of elections are segregating late-arriving ballots,” the Republican Party argued.
An analysis by NPR said that out of the 1,460,700 mail-in votes during Pennsylvania’s April primary, 1.07% (meaning a bit more than 15,000) were rejected for arriving late.
“You’re talking about, maybe, several thousand ballots — not tens of thousands or hundreds of thousands. … It is a relatively small number,” Shapiro told CNN on Friday.
The Pennsylvania GOP said Friday that “to date, a total of 25 Pennsylvania county boards of elections have not indicated whether they are segregating the late-arriving ballots.”
Alito wrote in late October that he would have granted the GOP’s request to limit ballot counting after Tuesday.
