GOP Asks Supreme Court to Block Mail-In Voting Extension in Pennsylvania

September 28, 2020 Updated: September 28, 2020

Top leaders in Pennsylvania’s Republican Senate petitioned the U.S. Supreme Court on Monday to block a major state court ruling that had extended the due dates for mail-in ballots for the Nov. 3 general election.

The Pennsylvania Supreme Court ruled on Sept. 17 that election officials can accept mail-in and absentee ballots up to three days after the Nov. 3 election, granting a request from the state’s Democratic Party. Pennsylvania’s Supreme Court has a 5-2 Democratic majority.

In particular, the deadline was moved from 8 p.m. on Nov. 3 to 5 p.m. on Nov. 6, provided the ballots were postmarked, or believed to be postmarked, by 8 p.m. on Nov. 3—election night. The court also let voters cast their ballots via drop boxes.

The Republican Party in Pennsylvania also filed a similar petition to the Supreme Court on Monday.

If the Supreme Court grants a stay, the deadline would revert back to 8 p.m. on Nov. 3.

“In the middle of an ongoing election, the Supreme Court of Pennsylvania has altered the rules of the election and extended the 2020 General Election beyond the ‘Time’ established by the state legislature,” lawyers for the two top Republicans in Pennsylvania’s Senate wrote in a Monday filing (pdf). “In doing so, the Supreme Court of Pennsylvania has violated federal law and the federal Constitution.”

“In a year where there is a very real possibility that the final presidential election result hinges on Pennsylvania, the new rules imposed by the decision of the Supreme Court of Pennsylvania (a body elected in partisan elections) could destroy the American public’s confidence in the electoral system as a whole,” argued Senate President Pro Tempore Joe Scarnati and Majority Leader Jake Corman.

The filing also said that the state court ruling “forces officials to count ballots received up to three days after Election Day even if they lack a legible postmark or any postmark at all,” adding, “This is an open invitation to voters to cast their ballots after Election Day, thereby injecting chaos and the potential for gamesmanship into what was an orderly and secure schedule of clear, bright-line deadlines.”

Primary election voting in Pennsylvania
A man casts his ballot in the primary election in Philadelphia, Penn., June 2, 2020. (Joshua Roberts/Reuters)

The Pennsylvania Supreme Court had ruled on Sept. 17 that ballots received on or before 5:00 p.m. on Nov. 6, 2020, that lack a postmark, a legible postmark, or other proof of mailing, can still be counted and “will be presumed to have been mailed by Election Day unless a preponderance of the evidence demonstrates that it was mailed after Election Day.”

Calling the ongoing COVID-19 pandemic “a natural disaster,” Justice Max Baer, writing for the majority, said in the opinion (pdf) that the primary elections earlier this year had threatened disenfranchisement of thousands of voters as several county election boards struggled with the unprecedented volume of mail-in ballot applications that was allowed through Act 77—legislation which permitted mail-in voting without condition. It was passed and signed into law last year.

“In light of these unprecedented numbers and the near-certain delays that will occur in Boards processing the mail-in applications, we conclude that the timeline built into the Election Code cannot be met by the USPS’s current delivery standards, regardless of whether those delivery standards are due to recent changes in the USPS’s logistical procedures or whether the standards are consistent with what the General Assembly expected when it enacted Act 77,” Baer wrote.

“Under our Extraordinary Jurisdiction, this Court can and should act to extend the received-by deadline for mail-in ballots to prevent the disenfranchisement of voters,” he added later.

Pennsylvania is regarded as an important battleground state where Trump won by a narrow margin in 2016 against then-opponent Hillary Clinton by about 44,000 votes, or about 0.7 percent.

The Republicans’ petition to the Supreme Court comes four days after the Justice Department announced that nine military mail-in ballots were discarded at Luzerne County Board of Elections in northeastern Pennsylvania, and that of the nine ballots discarded, seven were cast for Trump. The contents of the other two ballots are unknown.

Local officials on the following day, Sept. 25, said in a statement (pdf) that the incident was due to a “temporary seasonal independent contractor” who had “incorrectly discarded [the ballots] into the office trash,” and that the contractor “was removed from service and informed not to return.”

The last day to register to vote in Pennsylvania is Oct. 19, and the last day to request a mail-in ballot is Oct. 27.

Zachary Stieber contributed to this report.

Follow Mimi on Twitter: @MimiNguyenLy