Pennsylvania Republicans have filed a second emergency request with the U.S. Supreme Court in the hope of undoing a state Supreme Court ruling that forces Pennsylvania election officials to accept mail-in ballots received up to three days after 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, according to Ballotpedia.
Pennsylvania has 20 electoral votes out of the 270 needed to win the presidency.
The Supreme Court currently has eight members instead of the usual nine due to the Sept. 18 death of Justice Ruth Bader Ginsburg. The Senate Judiciary Committee voted 12–0 on Oct. 22 to send the nomination of Judge Amy Coney Barrett of the 7th Circuit Court of Appeals to the Senate floor. Every Republican member of the committee voted to support the nomination; Democratic members boycotted the vote. Trump and Senate Republican leaders have said they want Barrett confirmed before Nov. 3, a goal that is now within reach.
Along those lines, the Senate voted 51–48 on Oct. 25 on a procedural motion to move the nomination forward; a final confirmation vote is scheduled for Oct. 26.
On Oct. 19, the nation’s highest court denied on a 4–4 vote a Republican request to stay the Pennsylvania Supreme Court’s ruling requiring state election officials to count mail-in ballots received up to three days after Nov. 3. Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh indicated they would have approved the emergency application. Chief John Roberts voted with the three liberal justices—Stephen Breyer, Elena Kagan, and Sonia Sotomayor—to refuse the stay.
If Barrett joins the Supreme Court in time to consider the new case, Pennsylvania Republicans hope she would vote to block the state Supreme Court ruling, which they say is legally incorrect.
Democrats say it is too late to invalidate the ruling.
Pennsylvania Attorney General Josh Shapiro, a Democrat, suggested that undoing the state Supreme Court’s ruling would run afoul of the “Purcell principle,” which holds that courts should avoid modifying election rules close to an election to avoid confusing voters and creating headaches for election officials.
“Changing the rules late in the fourth quarter causes confusion and disenfranchises voters,” Shapiro said in a statement. “That’s what the Purcell Principle is designed to guard against. The Pennsylvania Supreme Court was within their bounds to allow the three-day extension and it should stay intact.”
Republicans disagree.
“A Pennsylvania statute unambiguously provides that absentee and mail-in ballots must be received by Election Day,” the party’s new petition to the Supreme Court states.
“Brushing that requirement aside, a 4–3 majority of the Pennsylvania Supreme Court extended the deadline by three days. The majority also required election officials to presume that any ballot received by its judicially-created deadline that lacks an intelligible postmark was mailed by Election Day, unless a preponderance of the evidence demonstrates otherwise.”
Republicans want the Supreme Court to consider on an emergency basis whether the state court’s majority “usurped the Pennsylvania General Assembly’s plenary authority” to decide how members of the Electoral College are appointed.
They also want the high court to decide “whether the majority’s extension and presumption are preempted by federal statutes that establish a uniform nationwide federal Election Day.”
“That the majority imposed this remedy by judicial fiat at the eleventh hour only underscores its error,” the petition states.
“With courts around the country weighing similar extensions of received-by deadlines that could push voting past Election Day in numerous states, the issues presented are important, recurring, and in need of this Court’s immediate resolution ... [which] could provide desperately needed clarity, and help states avoid the sort of last-minute changes in election rules this Court has consistently warned against.”
Pennsylvania officials blame the denials largely on duplicate requests initiated by voters who recently applied for mail-in ballots without knowing that they had already applied for the ballots during primary elections in June.
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