The US supreme court has rejected a last-minute plea from Pennsylvania Republicans to overturn a three-day extension of the absentee ballot deadline, a hugely consequential ruling in one of the most closely-watched swing states in the presidential election.
Pennsylvania usually requires ballots to arrive by 8pm on election night in order to count. But last month, the Pennsylvania supreme court extended that deadline by three days for ballots postmarked by election day, a move likely to allow thousands of late-arriving ballots to count.
Pennsylvania Republicans asked the US supreme court to halt that ruling pending appeal, but it declined to do so last week, deadlocking 4-4 and offering no explanation for its decision. The Pennsylvania Republican party then asked the court to expedite the case, which the court again declined to do on Wednesday.
Justice Amy Coney Barrett, who formally joined the court this week, did not participate in the case because the case needed to be resolved quickly and she did not have time to review the briefings in the case, the supreme court’s public information office said in a statement.
Despite Wednesday’s ruling, three of the court’s conservative justices – Samuel Alito, Neil Gorsuch, and Clarence Thomas – signaled the court may still consider the case after the election. The Pennsylvania supreme court’s ruling “likely violates the federal constitution”, Alito wrote for the three, and its decision “could lead to serious post-election problems”. Pennsylvania’s top election official also instructed counties to segregate ballots that arrived after 8pm on election day from ones that arrived before.
The three conservative justices also voiced support for the view that state supreme courts have limited authority to second-guess legislatures on rules for federal elections, a view justice Brett Kavanaugh voiced on Monday. That view could come into play in post-election disputes in states like North Carolina and Pennsylvania –which have Republican controlled-legislatures but Democratic majorities on the supreme court. In the future, the lack of oversight from state courts could give state lawmakers far more leeway to pass laws that make it harder to vote.
Richard Hasen, a law professor at the University of California, Irvine, wrote in a blogpost that he was skeptical that the court would throw out late arriving ballots after the election given that Pennsylvania voters are being instructed that they do not have to return their ballots by election day in order to have them count.
“Without Roberts and Kavanaugh going along, even if justice Barrett participated in future cases, there would not be five justices to throw out those ballots. It is still a theoretical possibility however, especially with ballots now being segregated between those arriving by the original statutory deadline and later ballots,” he wrote. “Hopefully the election will not be close enough in either PA or the electoral college and the issue becomes moot in this election.”
The ruling came just two days after the justices ruled in a similar case dealing with Wisconsin’s absentee ballot deadline. In that case, chief justice John Roberts sided with the court’s conservative justices to reinstate the state’s deadline that all ballots must be received by election day. In a brief explanation Monday, Roberts said the Pennsylvania case was different because it concerned an interpretation of law from a state court, while the Wisconsin case was all in federal court.