Pennsylvania Democrats are urging the U.S. Supreme Court to hold off on taking any action in a lawsuit filed by Republicans seeking to overturn a three-day extension to a deadline in which absentee ballots could be accepted by the election board.
The filing by the state’s Democratic Party on Thursday was made in a case challenging a Pennsylvania Supreme Court decision that requires election officials to accept absentee ballots received up to three days after Nov. 3. The case consolidates two cases, one bought by the Republican Party of Pennsylvania and the other by two Republican state senators.
The Supreme Court had previously rejected two requests by Republicans in this case, one to hold the state Supreme Court decision and the other to expedite consideration of a petition to review the merits of the case. Nevertheless, some members of the court have indicated interest in taking up the case.
Justice Samuel Alito wrote in his statement (pdf), “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.” He was joined by Justices Clarence Thomas and Neil Gorsuch.
Republicans in the case have argued that the extension of the deadline violates federal law that sets Election Day as the first Tuesday after the first Monday in November, and that the decision to extend the deadline belongs to the legislature, not the courts.
Under the U.S. Constitution, the “times, places, and manner of holding elections” may be prescribed by the state “legislature” and “Congress.”
Alito said in his statement that the issues presented in the case are of “national importance, and there is a strong likelihood that the State Supreme Court decision violates the Federal Constitution.”
State Democrats, in arguing that there is no need to take action in the case at present, argued that the “need for immediate review has diminished” because “any interest in providing clear pre-election guidance has evaporated.”
“No new circumstances require this Court to take any precipitous action,” they wrote (pdf), adding that “even if there were a legal basis for refusing to count any such ballots (and there is not), no reason exists to assume that the number of ballots received in that window would be large enough to be decisive in the races for President and House of Representatives.”
They said that because Pennsyvlvania’s Secretary of the Commonwealth Kathy Boockvar had issued guidance to counties to separate ballots received between 8 p.m. Nov. 3 and 5 p.m. Nov. 6, it was not necessary for the court to take any actions immediately.
“Given that procedure, which ensures that the ballots that petitioners challenge are not commingled with other ballots, there is no need for this Court to intervene prematurely while state officials continue to count votes as required under Pennsylvania law,” they wrote.
President Donald Trump’s re-election campaign on Wednesday filed a motion asking the court to let it join the lawsuit, saying that it was “the real party in interest” and “agrees that the Pennsylvania Supreme Court’s judgment violates federal law.”
“As the real party in interest, Movant has a direct, concrete stake in the outcome of these petitions and, ultimately, the lawfulness of Pennsylvania’s vote tally. The interests of justice and judicial economy strongly favor its participation in these proceedings,” the campaign wrote (pdf).
Trump had previously denounced the top court’s ruling, describing the ruling in a Twitter statement as “VERY dangerous.”
The ruling “will allow rampant and unchecked cheating and will undermine our entire systems of laws. It will also induce violence in the streets. Something must be done,” the president wrote.
As of Friday late afternoon, Democratic nominee Joe Biden has a razor-thin lead over Trump at 98 percent of the counting, according to the Associated Press.