WASHINGTON — The US Supreme Court will allow election officials in Pennsylvania to count ballots received up to three days after Election Day, rejecting Republicans' challenge to an expansion of mail-in voting in the state.
The court on Monday voted 4–4 on whether to take up the challenge, a tie that leaves in place a state court ruling that ordered the additional days of ballot-counting.
Pennsylvania Republicans had petitioned the justices to block a 4-3 ruling from the state Supreme Court last month that required election officials not only to count mail-in ballots postmarked by Election Day received by Nov. 6 at 5 p.m., but also to count ballots without a clear postmark during that time frame as well, as long as there was no evidence it was put in the mail after Election Day.
Chief Justice John Roberts Jr. sided with the court's three liberal-leaning justices in voting to deny the state Republicans' request for an immediate order temporarily halting the state court decision from taking effect before Election Day. The court's four other conservative-leaning justices voted in favor of granting the state Republicans' request. No justice wrote a separate concurring or dissenting opinion to explain their vote.
The possibility of tie votes loomed over the court's docket after the death last month of Justice Ruth Bader Ginsburg. President Donald Trump announced Judge Amy Coney Barrett as his nominee for Ginsburg's seat a week after the late justice had died, publicly saying that he wanted a full bench to hear any election-related cases that might reach the court. Republicans are racing to get Barrett confirmed; the Senate Judiciary Committee is scheduled to vote on her nomination on Oct. 22, and Senate Majority Leader Mitch McConnell has committed to holding a final vote soon after.
Barrett hasn't ruled in any election-related cases during her three years on the 7th Circuit. During her Senate confirmation hearings last week, Democrats pressed her to commit to recusing from any election-related cases this year, given Trump's comments that he expects the election to end up in the Supreme Court and that he is “counting on” the court to “look at the ballots.” Barrett declined to say what she would do.
“I commit to you to fully and faithfully applying the law of recusal. ... I will apply the factors that other justices have before me in determining whether the circumstances require my recusal or not,” Barrett said at the time. “But I can't offer a legal conclusion right now about the outcome of the decision I would reach.”
Voting rights advocates and state and national Democratic organizations have argued in courts across the country in favor of extending the deadlines for election officials to accept absentee ballots. They've pointed to the one-two punch of an unprecedented surge in mail-in voting during the coronavirus pandemic and reported delays this summer with US Postal Service delivery times.
There are other election-related cases pending before the Supreme Court. Democrats are challenging a decision by the US Court of Appeals for the 7th Circuit earlier this month that reinstated Wisconsin's Election Day deadline for accepting mail-in ballots; a district judge had extended the deadline for receiving ballots until Nov. 9., but the appeals court voted 2-1 to reverse that decision.
“Today, in the midst of a pandemic and significantly slowed mail delivery, this court leaves voters to their own devices,” Judge Ilana Rovner wrote in a dissenting opinion. “Good luck and G-d bless, Wisconsin. You are going to need it.”
Republicans in Alabama, meanwhile, have petitioned the Supreme Court to undo a decision from the 11th Circuit this month that blocked the state from enforcing a de facto ban on curbside voting this year. Other cases challenging how states are handling voting during the pandemic are still working their way up through state and federal courts and could also reach the justices before Election Day. A federal judge in Pennsylvania earlier this month rejected an effort by Trump's reelection campaign to challenge the state's plan to set up drop sites where voters could return absentee ballots and to argue for stricter rules around when ballots are rejected because the voter's signature doesn't match what's on file; the campaign's lawyers vowed to appeal, but haven't filed any paperwork to date.
The Supreme Court in recent months has generally sided with states seeking to enforce limits on mail-in voting. On Oct. 6, the court entered a brief order reinstating a South Carolina law that requires an absentee voter to have someone witness them signing their ballot and to prove it by having the witness sign the ballot, too. No justice dissented from that decision.
In April, the court voted 5-4 — with Roberts joining the court's other conservative-leaning justices — to block an extended timeline for counting mail-in ballots in Wisconsin during the primary election this spring. In that case, the majority found that a federal district judge was wrong to alter the state's voting procedures just days before the election was scheduled to take place.