New Justice Amy Coney Barrett, still getting up to speed, didn’t participate in either case—but, on October 28, the Supreme Court “declined to disturb” extended ballot deadlines in the battleground states of North Carolina and Pennsylvania—leaving the states more time to receive mail-in ballots postmarked by Election Day, The Wall Street Journal reports.
In the North Carolina litigation, the justices denied Republican requests to block a decision by state elections officials to extend the deadline for accepting mail-in ballots until November 12, a six-day extension of the date set by the legislature.
North Carolina elections officials said they extended their deadline “to keep voters from having their votes thrown out because of mail delays that the Postal Service had explicitly warned the state about.”
The Trump campaign, the Republican National Committee, the GOP state lawmakers, and others challenged the deadline extension and other changes—saying those officials improperly rewrote unambiguous rules set COVID -19 pandemic.
The high court didn’t explain its reasons for rejecting the requests, the Journal notes. Three of the court’s conservatives, Justices Clarence Thomas, Samuel Alito and Neil Gorsuch, registered objections and said they would have granted the challengers’ request to roll back the deadline. Justice Gorsuch wrote that the pandemic wasn’t the kind of natural disaster that gave the state board of elections a license to change voting rules.
The Supreme Court in the Pennsylvania matter refused to expedite a Republican challenge to a state court order providing three extra days for the state to accept absentee ballots mailed by Election Day.
The court’s order in that case included no noted dissents, although the same three conservative justices issued a statement indicating they were open to considering the case after Election Day.
On Friday, October 23, the Republican Party of Pennsylvania, backed by the Trump campaign, asked the Supreme Court to hear and decide its challenge before Election Day, November 3. The motion was unusual in that, only days earlier, the Supreme Court, by a 4-4 vote, had refused to block the three-day extension.
In September, the Pennsylvania Supreme Court extended to 5 p.m., November 6, the deadline to accept absentee ballots, from 8 p.m., November 3. The court credited guidance from the Pennsylvania secretary of state that the three-day extension would adequately account for processing backlogs in elections offices and postal delivery delays related to the coronavirus pandemic.
Democrats, who sued for public-health accommodations in accepting ballots, had asked for a weeklong extension, equivalent to the deadline federal law sets for accepting ballots mailed by military families and Americans overseas.
Although it leaves intact, for now, the Pennsylvania court order, Wednesday’s decision indicated that at least four justices are skeptical that state courts can alter election regulations adopted by state legislatures for presidential and congressional elections.
In its 4-3 decision, the Pennsylvania Supreme Court had likened the coronavirus pandemic to a natural disaster, which allows state courts to alter voting procedures should it occur on Election Day. The state justices invoked their power under the Pennsylvania Constitution’s Free and Equal Elections Clause, which the state high court has found more protective of voting rights than corresponding provisions in the federal Constitution.
In last week’s decision, Justices Thomas, Alito, Gorsuch and Kavanaugh voted to block the Pennsylvania court’s three-day extension. Chief Justice John Roberts joined the court’s three liberal members, Stephen Breyer, Sonia Sotomayor and Elena Kagan, to leave the Pennsylvania order in
Justice Alito issued a statement saying “there is a strong likelihood that the State Supreme Court decision violates the Federal Constitution,” but the proximity of Election Day made it impractical to decide the issue now. Justices Thomas and Gorsuch joined the statement; in a separate case from Wisconsin on Monday, Justice Brett Kavanaugh issued an opinion expressing similar views.
The court indicated that the justices may issue additional opinions in the case. The Supreme Court could still decide to hear the case after the election, particularly if the outcome depends on Pennsylvania’s 20 electoral votes.i
Research contact: @WSJ