Election Day is in just five days, though due to expanded mail-in and early voting, the election has effectively been going on for several weeks. Despite that, which mail-in votes will ultimately be eligible for counting and which will not has only just been finalized in a few key states. In at least one swing state, the question is settled for now but with a major condition.
On Wednesday, the Supreme Court decided not to overrule a decision of the 4th Circuit Court of Appeals, which upheld election rule changes made by the North Carolina State Board of Elections. Republicans sued when the board, without legislative authorization, extended the received-by deadline for mail-in ballots by six days. State law already allows the tabulation of those absentee ballots received “not later than three days after” Election Day, but with the board’s change, counties will be counting ballots through Nov. 12.
In another Wednesday decision, the court rejected a petition to fast-track a case of Republican petitioners from Pennsylvania asking it to overrule election changes made by the state’s supreme court. The Supreme Court of Pennsylvania ruled in September that the state could extend its mail-in ballot receipt deadline to Nov. 6, as the secretary of state had requested.
The U.S. Supreme Court had already rejected a previous stay request filed by the Pennsylvania petitioners in a decision delivered on Oct. 19, but the petitioners subsequently filed a writ of certiorari. The first decision was 4-4, with Justices Clarence Thomas, Neil Gorsuch, Samuel Alito, and Brett Kavanaugh voting to enter the stay. The petitioners were presumably hoping a newly-sworn in Justice Barrett would be the needed fifth vote for their new petition, but Barrett “took no part in the consideration or decision” announced on Wednesday, according to the motion announcement.
Earlier, on Monday, the court upheld a stay put in place by the 7th Circuit Court of Appeals, which had effectively returned Wisconsin’s receipt deadline for mail-in ballots to Election Day. The ballot deadline had previously been extended six days beyond Nov. 3 by a district court, though ballots would still have to be postmarked on or before Election Day.
These cases all grew out of various changes to voting rules, none of them made by state legislatures. In North Carolina, it was the elections board. In Pennsylvania, it was the state’s high court. In Wisconsin, it was a federal district court.
While justices Elena Kagan, Sonia Sotomayor, and Stephen Breyer dissented, the other five justices ruled in favor of the Republican petitioners in the Wisconsin case, seeing it fit that only the legislatures can make election laws. Justice Kavanaugh wrote in his opinion in the Wisconsin case, “Federal courts have no business disregarding those state interests simply because the federal courts believe that later deadlines would be better.”
However, Chief Justice John Roberts explained why he concurred in the Wisconsin case but not in the Pennsylvania case. “While the Pennsylvania applications implicated the authority of state courts to apply their own constitutions to election regulations, this case involves federal intrusion on state lawmaking processes,” he wrote.
That detail matters because it could come into play in post-Election Day litigation. As matters stand, these decisions would mean that Wisconsin will not count mail-in ballots beyond Election Day, but North Carolina and Pennsylvania will. Still, there is a catch.
The Supreme Court could still take up the question of Pennsylvania’s mail-in ballot extension. Justice Alito said there is not enough time to take up the issue before the election. “That does not mean, however, that the state court decision must escape our review,” he said. In congruence with that, on Wednesday, the Pennsylvania secretary of state ordered that mail-in ballots arriving after Election Day be segregated from those arriving on or before, in case the Supreme Court strikes down the deadline extension.
It may never come to that. There might be no such ruling, or Pennsylvania could be a blowout, and the number of post-Election Day ballots could be small enough to not really matter. There is a lot that could happen next week and thereafter. The notion that the election may be decided by the court is right but a bit underdeveloped. The court is participating right now.
