Barrett Absent as Supreme Court Refuses to Block Extended Ballot Deadlines

October 29, 2020 Updated: October 29, 2020

A deadlocked Supreme Court has refused emergency requests seeking to rein in extended deadlines for the receipt of ballots in the battleground states of Pennsylvania and North Carolina in the Nov. 3 elections, but the court’s newest member did not participate in the decisions.

One of the reasons her supporters gave for expediting the U.S. Senate confirmation of the newest member of the court, Justice Amy Coney Barrett, was that doing so would make her available to break any potential 4–4 tie votes in important cases related to the ongoing elections. During her recent confirmation hearings, Barrett refused to discuss election-related cases or whether she would recuse herself from such cases.

Chief Justice John Roberts administered the judicial oath to Barrett on Oct. 27, making her the 103rd Associate Justice of the Supreme Court. A press release from the court dated Oct. 26 previewing the swearing-in ceremony stated, “Upon administration of that oath, she will be able to begin to participate in the work of the Court.”

The Supreme Court’s Public Information Office (PIO) did not immediately respond to a request from The Epoch Times to explain Barrett’s non-participation.

Amy Howe reports at SCOTUSblog that the PIO informed her the new justice did not take part in the Pennsylvania application because she “opted not to participate to allow the justices to act on the motion quickly and because she had not yet had an opportunity to fully review the filings in the case.”

Late Oct. 28, the court denied Pennsylvania Republicans’ second emergency request aimed at undoing a Pennsylvania Supreme Court ruling that forces the state’s election officials to accept mail-in ballots received up to three days after Election Day.

In the case, Republican Party of Pennsylvania v. Boockvar, Republicans asked the U.S. Supreme Court to fast-track consideration of whether the state court “usurped the Pennsylvania General Assembly’s plenary authority” to decide how members of the Electoral College are appointed.

They also wanted the high court to decide “whether the [state court] majority’s extension and presumption are preempted by federal statutes that establish a uniform nationwide federal Election Day.”

Pennsylvania is among the most hotly contested states for the Nov. 3 presidential election. President Donald Trump won the state in 2016 by 44,292 votes out of more than 6 million cast. He secured 48.2 percent of the popular vote in the state, beating Democrat Hillary Clinton, who won 47.5 percent.

Pennsylvania has 20 electoral votes out of the 270 a candidate needs to win the presidency.

The 4–4 decision leaves in place the state supreme court ruling that in addition to extending the receipt deadline also requires election officials to presume that any ballot received by the extended deadline that lacks an intelligible postmark was mailed by Election Day.

In the Oct. 28 ruling, Justice Samuel Alito filed a dissenting opinion that was joined by Justices Clarence Thomas and Neil Gorsuch. Chief Justice John Roberts voted with the three liberal justices—Stephen Breyer, Elena Kagan, and Sonia Sotomayor—to refuse the application. Barrett didn’t participate.

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.

“The Supreme Court of Pennsylvania has issued a decree that squarely alters an important statutory provision enacted by the Pennsylvania Legislature pursuant to its authority under the Constitution of the United States to make rules governing the conduct of elections for federal office.”

“It would be highly desirable to issue a ruling on the constitutionality of the State Supreme Court’s decision before the election. That question has national importance, and there is a strong likelihood that the State Supreme Court decision violates the Federal Constitution.”

On Oct. 19, before Barrett was confirmed, the U.S. Supreme Court denied Pennsylvania Republicans’ first emergency request in the case, also on a 4–4 vote.

The U.S. Supreme Court also refused two related applications regarding North Carolina elections, Berger v. North Carolina Board of Elections and Moore v. Circosta. The Berger application was disposed of on Oct. 29; the Moore application, the day before.

In both cases, Roberts joined the three liberal justices in voting to reject the application. Barrett did not take part in the two cases.

In 2016 in North Carolina, Trump won 49.8 percent of the votes cast in the state, triumphing over Clinton who received 46.2 percent of the votes. Trump received 173,315 more votes than Clinton received.

The Tar Heel State has 15 electoral votes.

State Republicans and the Trump campaign asked the U.S. Supreme Court to roll back the extension of the deadline for the receipt of mail-in ballots that allowed those ballots to be accepted up to nine days after Election Day.

The North Carolina Alliance for Retired Americans argued that a Nov. 6 receipt deadline should be extended even further in light of the ongoing pandemic. A state court approved a consent agreement between the group and the state’s elections board that extended the deadline for mail-in ballots by another six days, to Nov. 12.

Republican state lawmakers sued in federal court along with the Trump campaign and the Republican National Committee but the 4th Circuit Court of Appeals refused Oct. 20 to invalidate the consent agreement. Dissenting Judge J. Harvie Wilkinson reportedly urged the unsuccessful parties to “take this case up to the Supreme Court immediately.”

Justice Gorsuch wrote in a dissent in the Moore case the board’s “last-minute changes … invite confusion, risk altering election outcomes, and in the process threaten voter confidence in the results.”