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The U.S. Supreme Court has rejected an eleventh-hour plea by Pennsylvania Republicans to strike down a three-day extension for counties to accept mail ballots, but has left open the possibility that it will hear the case and that those votes might not ultimately be counted.
“The question presented by the Pennsylvania Supreme Court’s decision calls out for review by this court— as both the State Republican and Democratic Parties agreed when the former applied for a stay,” Justice Samuel Alito wrote in a statement, joined by Justices Clarence Thomas and Neil Gorsuch. “But I reluctantly conclude that there is simply not enough time at this late date to decide the question before the election.”
Justice Amy Coney Barrett did not participate in the decision. But with the prospect the high court could still hear the case or related challenges to late ballots, state election officials urged voters not to count on the extension or the U.S. Postal Service, and instead to hand-deliver their mail ballots to counties as soon as possible.
“Cast it now, do not wait,” Kathy Boockvar, Pennsylvania’s top elections officer, said during a call with reporters Wednesday. “At this point, we are not recommending that anybody put their ballots in the mail. Just drop it off in person.”
In new guidance, Boockvar advised counties to set aside any mail-in and absentee ballots that arrive after Nov. 3, even if they have a postmark showing that they were sent before Election Day.
It is not clear what will happen to those ballots, how long they will remain impounded, or whether they will be counted. As of mid-week, Pennsylvania voters had returned roughly two million of the three million mail-in and absentee ballots that had been requested in all 67 counties. And they expect thousands more to arrive before polls close on Election Day.
President Donald Trump’s campaign declared Wednesday’s decision as a victory, saying that the litigation had forced Boockvar to see “the writing on the wall” and direct counties to separate out any mail-in and absentee ballots that arrive after Election Day.
The case is one of several voting-related battles that have landed before the nation’s highest court. Earlier this week, its justices blocked state officials in Wisconsin, another battleground state, from extending the deadline to receive mailed ballots by six days after the election.
In Pennsylvania, extending the deadline for counties to receive and count mail-in and absentee ballots has been mired for weeks in legal challenges.
State law requires mailed ballots to arrive by close of polls on Election Day, and that requirement did not change when the legislature last year greatly expanded the ability to vote by mail in Pennsylvania.
But during the primary, Gov. Tom Wolf, a Democrat, citing the pandemic and civil unrest amid nationwide police brutality protests, allowed a handful of counties additional time to receive and count ballots.
Democrats over the summer asked the Pennsylvania Supreme Court to rule on a host of election issues, including a request to extend the deadline for receiving ballots.
A majority of justices on the Democrat-dominated court granted the request, allotting an additional three days — or until Nov. 6th — for counties to receive ballots, as long as the ballot was postmarked by Election Day. The justices took it one step further, ruling that ballots with an illegible or missing postmark could still be counted, as long as they arrived by Nov. 6th — the presumption being that if it arrived by then, it was likely sent by Election Day.
Throughout their ruling, Pennsylvania’s justices cited the need to ensure voting rights during the pandemic.
Republicans took the matter to the U.S. Supreme Court, asking the high court for a stay on the deadline. The justices deadlocked in a 4-4 vote last week, an outcome that meant the extension could stand. The GOP late last Friday asked the high court to decide the case on its merits and to do so before Tuesday’s election.
Court watchers have noted that, this time around, Barrett could side with the four conservative members of the court who had signaled that the three-day extension should be blocked.
The state GOP has argued that the state’s Supreme Court essentially rewrote the rules for the election, a power that belongs solely with state legislatures. It also contends that granting the three-day extension violated federal law, which requires “uniform rules” for federal elections.
Democrats, in court documents, had called the state GOP’s request to the U.S. Supreme Court “rash and unseemly.” Among other things, they argued that it is not clear how many ballots will even arrive in the three days after Election Day, or whether they would be enough to change the result of the election.
“This court’s election-eve intervention would only guarantee confusion and disruption,” the state Democratic Party argued. “And it would do so without anything close to a real need for such precipitous action.”
The board of elections in Luzerne County, considered critical in the race for snagging Pennsylvania’s coveted 20 electoral votes, earlier this week asked for Barrett to recuse herself from participating in the case, raising questions about her impartiality.
They noted that Barrett was appointed by Trump, who has said publicly that the presidential election’s outcome could well be decided by the U.S. Supreme Court.
“All of this raises a terrible ‘appearance’ problem which can only engulf the Supreme Court in a political stew with poisonous consequences for the independence and perceived integrity of the judiciary,” the elections board said in its brief, arguing that Barrett’s recusal is required by constitutional due process and judicial impartiality rules.
Within hours, a majority of Luzerne’s County Council voted to withdraw the recusal request, The Times-Leader reported.
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