That means Barrett, who was nominated by President Donald Trump and confirmed earlier this week, could still rule in the Pennsylvania case and other election-related legal fights. During her confirmation hearings earlier this month, Democrats pressed Barrett to agree to recuse herself from any election litigation that would come before the court this year, but she demurred.
Her vote in the case could be pivotal, because just last week the Supreme Court deadlocked, 4-4, on the Republicans’ request for an emergency stay that would have blocked the Pennsylvania state Supreme Court’s decision allowing ballots that arrive up to three days after election day to be counted if they are postmarked by election day.
No justice publicly dissented from the high court’s decision not to take up the Pennsylvania dispute in advance of next Tuesday’s election.
In a statement accompanying the denial in Pennsylvania, Justice Samuel Alito wrote that while “it would be highly desirable to issue a ruling” before the election, he “reluctantly conclude[s] that there is simply not enough time at this late date.” His statement, joined by Justices Clarence Thomas and Neil Gorsuch, indicates that they would likely overturn the ballot return extension in the crucial battleground state.
In North Carolina, the court declined to block an extension of the state’s ballot return deadline. Normally, ballots postmarked by Election Day there can be counted if they are received within three days of the election, but a pandemic-related change pushed that to nine days. Thomas, Gorsuch and Alito all said they would have blocked the extension in North Carolina, and no other justice publicly noted their dissent.
Alito noted in the Pennsylvania case that the secretary of the commonwealth issued guidance to local election officials earlier on Wednesday to segregate ballots received after the close of polls but before the Nov. 6 deadline, cracking the door for a potential post-election decision.
The guidance is seemingly preparing for the eventuality that the high court could hear arguments on — and potentially overturn — the ballot extension in their state ordered by the state Supreme Court. State elections officials ordered counties to log and separate ballots received after close of polls on Tuesday but before 5 p.m. on Nov. 6.
Kathy Boockvar, the secretary of the commonwealth, “continues to defend the extension to ensure that every timely and validly cast mail-in and absentee ballot is counted,” the guidance read. “Because this issue is still-pending before the U.S. Supreme Court, however, county boards of elections are directed” to take these actions.
Alito’s statement suggested that he believes those ballots could still be tossed, even if a ruling comes after Election Day.
“The Court’s denial of the motion to expedite 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,” he wrote.
The Trump campaign also claimed victory on that front: “The Pennsylvania Secretary of State saw the writing on the wall and voluntarily complied with our injunction request, segregating ballots received after the legislature’s November 3 deadline to ensure they will not be counted until the U.S. Supreme Court rules on our petition,” Justin Clark, deputy campaign manager and senior counsel for the president’s campaign, said in a statement.
The guidance from Boockvar’s office does not say ballots will not be counted, but does instruct local election officials to “not pre-canvass or canvass any mail-in or civilian absentee ballots” received in that timeframe “until further direction is received.”
The court’s punt comes as Trump makes a fresh push to pressure officials to cut ballot counting short by calling for definitive results on Nov. 3, despite months-long warnings from public officials that his demands just aren’t operable in critical swing states.
As recently as Monday, Trump has said tweeted results must be “final” on Nov. 3, which has never been the case for any past election, part of his continued assault on faith in the American electoral system.
The canvassing and certifying processes to determine official results in the states, which administer their own elections, stretch anywhere from hours to weeks after the election. Military and overseas voters often get more time for their ballots to arrive to be counted, too.
Media outlets do often project winners in many contests based on a combination of unofficial returns and exit polling. But in three key states on the path to the presidency — Michigan, Pennsylvania and Wisconsin — election officials have long warned that the results posted on the night of Nov. 3 will be incomplete. Those states will not start the labor-intensive process of verifying, opening and counting mail ballots until millions of them have piled up, meaning it will take days to dispense with them, even if they are all received before the polls close.
Michigan is allowing some counties to start limited pre-processing of the ballots the day before the election, while Pennsylvania and Wisconsin made no such accommodation, requiring election officials to start on Nov. 3. In all three states, experts warn that results posted on election night will not be conclusive because they exclude mail ballots, which public polling and ballot return data shows heavily favors Democrats.
(Other swing states, like Florida or North Carolina, allow extended windows for ballot processing, meaning a majority of votes in those states will likely be counted on election night.)
Nevertheless, Trump has continued his push and has used a false interpretation of a recent Supreme Court case to forge ahead.
“I think on Tuesday we’re gonna overperform and we’ll see what happens at the end of the day. Hopefully it won’t go longer than that,” Trump told reporters in Nevada on Wednesday. “Hopefully, the few states remaining that want to take a lot of time after Nov. 3 to count ballots, that won’t be allowed by the various courts, because as you know we’re in courts on that. We just had a big victory yesterday in Wisconsin on that matter.”
Trump was, however, apparently misreading a Monday Supreme Court ruling on Wisconsin. The Supreme Court declined to reinstate an extension of the ballot return deadline that a lower court ordered in the critical swing state. That means ballots must be received by close of polls in Wisconsin, instead of postmarked by Election Day and received some days later as the lower court ordered.
That ruling does not affect when Wisconsin will count the ballots it receives, nor does the court declining to expedite the case in Pennsylvania.
Alito’s opinion Wednesday evinced deep skepticism about the Pennsylvania Supreme Court’s decision to grant the extension, suggesting that the state court usurped the role the Constitution reserves to the legislature. While Justice Brett Kavanaugh did not sign on to Alito’s statement on Wednesday, his concurring opinion in the Wisconsin case earlier in the week indicates he shares similar views.
“The Supreme Court of Pennsylvania has issued a decree that squarely alters an important statutory provision enacted by the Pennsylvania Legislature pursuant to its authority under the Constitution of the United States to make rules governing the conduct of elections for federal office,” Alito wrote. He went on to say that lawmakers had “unambiguously required that all mailed ballots be received by 8 p.m. on election day,” but the state court set a new standard as an accommodation for the larger numbers of absentee voters as a result of the coronavirus pandemic.
Alito’s opinion also signaled some grumbling by the most conservative justices that the court did not take up the opportunity earlier this month to set aside the ballot extension, at least temporarily. Chief Justice John Roberts appears to have played the crucial role in that decision by declining to join the court’s four other Republican appointees in granting that stay.
“The Court’s handling of the important constitutional issue raised by this matter has needlessly created conditions that could lead to serious post-election problems,” Alito noted pointedly at the outset of his opinion Wednesday.
Alito’s opinion was the only one released by the court, but it may not be the final word even on this phase of the litigation. In an unusual note, the court said additional opinions could be released in the future.
Similarly, in the North Carolina ruling, Gorsuch wrote that the extension in North Carolina, which was driven by an agreement brokered by the state board of elections and plaintiffs in a lawsuit, usurped the role of the state legislature. Alito joined Gorsuch’s dissent.
A Supreme Court ruling on the proper role of state courts in federal elections would likely have to address several thorny issues, like whether parsing state court rulings offends the notion of federalism extolled by many conservatives. The justices may also need to grapple with the extent to which state legislatures can delegate authority to state courts and state election officials. Those officials often make last-minute changes to voting locations due to natural disasters and similar mishaps. In addition, judges have often been called on to extend voting hours due to unusually long lines, traffic jams, electric-power outages and other conditions.
Those requests have often been taken to federal judges, but as a result of the 2013 Supreme Court decision reining in the Voting Rights Act, state courts in many locations are again a viable venue for such last-ditch litigation. A sweeping Supreme Court decision in favor of Republicans in the Pennsylvania case could curtail or foreclose much of that sort of court action.
The threat of potential 11th-hour deadline changes from the Supreme Court has led to Democrats, along with election officials, to urge voters who have not yet returned a mail ballot to do so in-person, either at a drop box or at a local election office.
Likewise, the United States Postal Service recommended voters send their ballots via the mail no later than the Tuesday before Election Day.