By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.
In the first of what will no doubt be a series of blockbuster voting rights rulings or opinions in this 2020 electoral season, the U.S. Supreme Court let stand a Pennsylvania Supreme Court ruling to count mail-in ballots received within three days of November 3rd’s Election Day, even if they lack a legible postmark.
For those keeping partisan score. this means the Court upheld the Democratic party argument, and rejected the Republican one.
The Wall Street Journal reports in Supreme Court Allows Extension for Mail-In Ballots in Pennsylvania:
The Supreme Court on Monday refused to disturb a ruling by Pennsylvania’s highest court that extended the battleground state’s deadline for accepting mail-in ballots, a win for Democrats that gives voters more time to navigate postal delays and avoid in-person voting.
The Court deadlocked 4-4 on this ruling. With last month’s death of Justice Ruth Bader Ginsburg, the Court currently only has 8 members, and in the event of ties, the lower court decision subject to appeal stands. But based on her past voting rights decisions, the Court would almost certainly have struck down the provision if Amy Coney Barrett’s nomination had already been confirmed and she had taken up the waiting seat on the Court (and voted rather than recusing herself). The Court declined to issue an opinion.
Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh opposed upholding the lower court’s order, leaving Chief Justice John Roberts and Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan on the other side.
According to Scotus blog, Supreme Court leaves in place order requiring Pennsylvania to count absentee ballots after Election Day:
The order came in a lawsuit filed by the Pennsylvania Democratic Party that challenged various aspects of the state’s absentee-ballot system in light of the coronavirus pandemic. Last month, the Pennsylvania Supreme Court, citing a voting-rights provision of the state’s constitution, ordered several modifications to voting rules, including extending the deadline by which mail-in ballots must be received in order for them to be counted. Previously, that deadline was Election Day, but the state court ruled that ballots should be counted if they are received up to three days after Election Day unless a “preponderance of the evidence” shows that a ballot was mailed after Election Day. That means that ballots lacking clear postmarks may be counted if received by Nov. 6.
Republican legislators and the Pennsylvania Republican Party went to the U.S. Supreme Court on Sept. 28, asking the justices to block the portion of the Pennsylvania Supreme Court’s order that extended the mail-in ballot deadline. They argued that the state court’s ruling will allow ballots cast and received after Election Day to be counted, thereby violating federal election law, which establishes a single Election Day, as well as the U.S. Constitution, which gives state legislatures the power to set the time, place and manner of federal elections. If the justices did not step in, the legislators warned, the state court’s order “could destroy the American public’s confidence in the election system as a whole.”
Pennsylvania officials urged the justices to stay out of the dispute, dismissing the requests from the legislators and the Pennsylvania Republican Party as an effort to “supplant the Pennsylvania Supreme Court’s interpretation of Pennsylvania law” and “intrude upon Pennsylvania’s sovereignty.” And even if federal election law and the U.S. Constitution were at issue in the dispute, they continued, neither the Pennsylvania Republican Party nor the Republican legislators have a legal right to sue, known as standing. Furthermore, they argued, the state court’s order does not violate federal election law because, although it allows votes to be counted after Election Day, it does not allow votes to be cast after Election Day. Similarly, the order does not violate the U.S. Constitution because the state court determined that it was necessary to protect the rights of Pennsylvania voters under the state constitution – which, the justices have acknowledged, can limit the state legislature’s power under the U.S. Constitution’s elections clause.
The Wall Street Journal account emphasised Pennsylvania’s importance in the upcoming election:
Pennsylvania is among the most hotly disputed states in the coming presidential election. It narrowly awarded its 20 electoral votes to President Trump in 2016, but recent polls have shown Democratic presidential nominee Joe Biden ahead in the state. Democrats have turned heavily to absentee ballots in response to the pandemic, so the extension could help Mr. Biden if ballots delayed in the mailstream tilt his way.
President Trump has said he expects the Supreme Court to help decide the presidential election, and pushed to confirm Judge Amy Coney Barrett, his nominee to replace Justice Ginsburg, in time to participate. Mr. Trump’s two previous appointees, Justices Gorsuch and Kavanaugh, voted for the Republican request to cancel the deadline extension. Judge Barrett, questioned at her confirmation hearing last week by Democratic senators, said she would consider whether to recuse herself from an election case involving Mr. Trump should one arise.
Senate Majority Leader Mitch McConnell still promises her confirmation by Election Day and I see no reason to doubt that assessment.
Fasten Your Seatbelts, It’s Going to Be a Bumpy Night
As election season unfolds, to quote one of my heroines, Margo Channing, “Fasten your seatbelts, it’s going to be a bumpy night.”
