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The Supreme Court’s Conservative Justices Warned Of “Serious Post-Election Problems” In Pennsylvania

The court denied a request by state Republicans to rush a decision in the latest challenge to the state’s Nov. 6 deadline to accept absentee ballots.

Posted on October 28, 2020, at 7:26 p.m. ET

Stefani Reynolds / Getty Images

WASHINGTON — The US Supreme Court on Wednesday denied a request by Pennsylvania Republicans to rush a decision by Election Day on their latest challenge to the state’s extended absentee ballot deadline. But three of the court’s conservative-leaning justices warned the fight isn’t over, raising the specter that mail-in ballots that arrive after Election Day could still be invalidated.

Wednesday’s order, which newly sworn-in Justice Amy Coney Barrett didn’t participate in, leaves in place a Pennsylvania Supreme Court decision that means the state will accept absentee ballots that arrive by mail by Nov. 6 at 5 p.m. But the case remains pending before the US Supreme Court.

Justice Samuel Alito Jr., joined by Justices Clarence Thomas and Neil Gorsuch, wrote separately to make clear that the court could still intervene and that the fate of ballots that arrive after Election Day isn’t settled yet.

If the Supreme Court later overturns the extended deadline, Alito didn’t explicitly say what could happen to ballots that arrived after Nov. 3, only writing that “a targeted remedy will be available.” It’s not clear what that targeted remedy might be.

Alito also indicated he was leaning in favor of Republicans, writing that there was a “strong likelihood that the State Supreme Court decision violates the Federal Constitution.”

The Pennsylvania attorney general’s office notified the court earlier on Wednesday that the secretary of state had directed counties to set aside and not count ballots that arrive after 8 p.m. on Nov. 3 until after the court fight is over.

The attorney general’s office released a statement saying that commonwealth officials had “taken careful steps to ensure all eligible Pennsylvania votes will be counted and to stave off further anticipated legal challenges,” but it also urged voters to return absentee ballots to a drop box "as soon as possible."

“We applaud the Court’s decision to slow down, get to regular order, and let Pennsylvania have an election. Now we must vote and take time to count all eligible ballots,” the attorney general’s office said. “The denial of expedited review is good for Pennsylvania voters, who will not have the rules changed on them on the eve of the election without proper review. There could be more and we are prepared.”

A lawyer for the Republican Party of Pennsylvania did not immediately return requests for comment. The Trump campaign released a statement from Justin Clark, deputy campaign manager and senior counsel, calling the secretary’s decision to segregate the later ballots and not include them in the state’s count for now “a big victory.”

“The Supreme Court deferred the important issue in this case — whether state courts can change the times, places, and manners of elections contrary to the rules adopted by the state legislature — until after November 3," Clark said.

In a blog post shortly after the court released Wednesday’s order, election law expert Rick Hasen wrote that he thought it was unlikely the court would end up tossing the post–Nov. 3 ballots altogether, since the court created a situation in which Pennsylvania voters are relying on the Nov. 6 deadline in a previous order. But he wrote it was a “theoretical possibility,” especially now that county election officials would set aside those ballots.

On Oct. 19, the Supreme Court voted 4–4 — with Chief Justice John Roberts Jr. siding with the court’s liberal wing — on Republicans’ request to temporarily block the extended timeline for counting votes until the court decided the case, a tie that left the Nov. 6 deadline in place. On Oct. 23, the Pennsylvania Republican Party asked the court for “expedited consideration” of the merits of the case — whether Pennsylvania could reject all ballots that arrive after Nov. 3 — and to issue a ruling by Election Day.

Alito criticized how the court had managed the case. He wrote that because the justices didn’t rule on the merits when the case first reached the court a month ago, it set up the situation they faced now, which was an emergency request to rule just days before the election.

“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 wrote. He continued farther down: “[T]he 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. But I reluctantly conclude that there is simply not enough time at this late date to decide the question before the election.”

The order didn’t include an explanation for Barrett’s decision to not participate in Wednesday’s order, but a court spokesperson said in a statement that it was "because of the need for a prompt resolution of it and because she has not had time to fully review the parties’ filings." Barrett officially began working on court business after being sworn in by Roberts on Tuesday.

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