WASHINGTON – Democrats won two major victories involving voting deadlines in key battleground states Wednesday at the Supreme Court, as the justices will allow extended periods for receiving mail-in ballots in Pennsylvania and North Carolina.
They declined to disturb decisions that allow Pennsylvania officials to receive ballots cast by Election Day and received within three days, while the grace period set by the elections board in North Carolina is nine days.
In both of the cases, Republican Party and GOP legislators had opposed the extensions, and President Trump has railed on the campaign trail about the mail-in vote.
Three conservative justices – Clarence Thomas, Samuel Alito Jr. and Neil Gorsuch – objected in both cases. The justices in the majority did not explain their votes, which is common in emergency petitions before the court.
New Justice Amy Coney Barrett decided not to participate in either vote. Her decisions did not signal a blanket recusal in election cases, as Democratic senators tried to get her to pledge during her confirmation process. Instead, the court said the cases at isssue needed prompt decisions and Barrett did not have time to fully review the legal arguments.
The decision in Pennsylvania, a state that proved vital to Trump’s election four years ago and is key to his reelection, might not be settled.
The three conservative justices signaled that they might want to revisit the issue there after the election, and even indicated the votes ultimately might not be counted.
The three penned a statement criticizing the ruling by the Pennsylvania Supreme Court that called for three extra days to receive mail-in ballots because of the crush of requests brought on by fears of the coronavirus pandemic, writing that it was probably unconstitutional.
“There is a strong likelihood that the State Supreme Court decision violates the Federal Constitution,” wrote Justice Samuel A. Alito Jr., who was joined by Justices Clarence Thomas and Neil M. Gorsuch.
“The provisions of the Federal Constitution conferring on state legislatures, not state courts, the authority to make rules governing federal elections would be meaningless if a state court could override the rules adopted by the legislature simply by claiming that a state constitutional provision gave the courts the authority to make whatever rules it thought appropriate for the conduct of a fair election.”
The Pennsylvania Supreme Court decision to grant the extra time was based on a “Free and Equal Elections Clause” in the commonwealth’s constitution.
According to the majority, that provision requires elections to be “conducted in a manner which guarantees, to the greatest degree possible, a voter’s right to equal participation in the electoral process,” and affords courts “broad authority to craft meaningful remedies when required.”
The justices who voted not to accept the Republican request did not explain their reasoning, although the court said additional statements may be forthcoming.
Justice Brett M. Kavanaugh, who had voted with the other three conservatives to grant a previous Republican request to stop the deadline extension, did not join Alito’s statement.
On Oct. 19, the Supreme Court’s 4-to-4 vote left the Pennsylvania court’s ruling in place.
But Republicans renewed their request when it became clear that Barrett, Trump’s third appointee to the court, would be confirmed in time to make a last-ditch pitch.
Trump on Wednesday said at a news conference that he was depending on courts to keep states from counting ballots received after Election Day, even those clearly postmarked before then.
“Hopefully the few states remaining that want to take a lot of time after November 3rd to count ballots, that won’t be allowed by the various courts,” the president said.
The president apparently was referring to ballots received after Nov. 3, because states always are counting votes after Election Day and do not certify the outcome for weeks.
Alito said there was not enough time to review the Pennsylvania court’s decision before the election.
But he noted that the denial of the motion to take it up now “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.”
The justices’ action involved what might seem to be a technical practice, but it carries outsize importance because of Pennsylvania’s pivotal role in the presidential election. It prompted a fierce battle between the state’s Democrats and Republicans in a state won by Trump in 2016 by 44,000 votes, and critical to his reelection prospects.
The Pennsylvania Supreme Court – itself an elected, partisan body – ruled 4 to 3 in Democrats’ favor in September on a number of mail-voting changes.
The most important, and the only one challenged at the U.S. Supreme Court, was the decision that mail-in ballots received by 5 p.m. on Nov. 6 must be counted if they were postmarked by Nov. 3. If no postmark is discernible, the state court said, officials should presume it valid “unless a preponderance of the evidence” shows that the ballot was mailed after Election Day.
While the U.S. Supreme Court has routinely overruled federal judges who change the rules during an election – Wisconsin was an example of that, earlier this week – it is rare for the court to intervene when a state court was interpreting the state’s constitution and laws.
Chief Justice John G. Roberts Jr. wrote in the Wisconsin case that, in general, he opposed federal judges intervening in the “thick of election season to enjoin enforcement of a State’s laws.” But the Pennsylvania case involved the authority of state courts to interpret their own constitutions, he wrote.
“Different bodies of law and different precedents govern these two situations and require, in these particular circumstances, that we allow the modification of election rules in Pennsylvania but not Wisconsin,” he wrote.
But it is now clear that is not a view shared by his conservative colleagues.
“The Constitution provides that state legislatures – not federal judges, not state judges, not state governors, not other state officials – bear primary responsibility for setting election rules,” Gorsuch wrote in the Wisconsin case.
The Pennsylvania cases are Scarnati v. Boockvar and Republican Party v. Boockvar.