Democrats in Pennsylvania, North Carolina claim key wins at Supreme Court ahead of election
By Robert Barnes
Oct. 28, 2020 at 9:04 p.m. EDT
Democrats won two major victories involving voting deadlines in key battleground states Wednesday at the Supreme Court, as the justices will allow extended periods for receiving mail-in ballots in Pennsylvania and North Carolina.
They declined to disturb decisions that allow Pennsylvania officials to receive ballots cast by Election Day and received within three days, while the grace period set by the elections board in North Carolina is nine days.
In both of the cases, Republican Party and GOP legislators had opposed the extensions, and President Trump has railed on the campaign trail about the mail-in vote.
Three conservative justices — Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch — objected in both cases. The justices in the majority did not explain their votes, which is common in emergency petitions before the court.
New Justice Amy Coney Barrett decided not to participate in either vote. Her decisions did not signal a blanket recusal in election cases, as Democratic senators tried to get her to pledge during her confirmation process. Instead, the court said the cases at issue needed prompt decisions and Barrett did not have time to fully review the legal arguments.
The decision in Pennsylvania, a state that proved vital to Trump’s election four years ago and is key to his reelection, might not be settled.
The three conservative justices signaled that they might want to revisit the issue there after the election, and even indicated the votes ultimately might not be counted.
The three penned a statement criticizing the ruling by the Pennsylvania Supreme Court that called for three extra days to receive mail-in ballots because of the crush of requests brought on by fears of the coronavirus pandemic, writing that it was probably unconstitutional.
“There is a strong likelihood that the State Supreme Court decision violates the Federal Constitution,” wrote Alito.
“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.”
The Pennsylvania Supreme Court decision to grant the extra time was based on a “Free and Equal Elections Clause” in the commonwealth’s constitution.
According to the majority, that provision requires elections to be “conducted in a manner which guarantees, to the greatest degree possible, a voter’s right to equal participation in the electoral process,” and affords courts “broad authority to craft meaningful remedies when required.”
The justices who voted not to accept the Republican request did not explain their reasoning, although the court said additional statements may be forthcoming.
Justice Brett M. Kavanaugh, who had voted with the other three conservatives to grant a previous Republican request to stop the deadline extension, did not join Alito’s statement.
Supreme Court denies GOP request to stop extended deadline for mail-in ballots in Pennsylvania, a key state for Trump
On Oct. 19, the Supreme Court’s 4 to 4 vote left the Pennsylvania court’s ruling in place.
But Republicans renewed their request when it became clear that Barrett, Trump’s third appointee to the court, would be confirmed in time to make a last-ditch pitch.
Trump on Wednesday said at a news conference that he was depending on courts to keep states from counting ballots received after Election Day, even those clearly postmarked before then.
“Hopefully the few states remaining that want to take a lot of time after November 3rd to count ballots, that won’t be allowed by the various courts,” the president said.
The president apparently was referring to ballots received after Nov. 3, because states always are counting votes after Election Day, and do not certify the outcome for weeks.
Alito said there was not enough time to review the Pennsylvania court’s decision before the election.
But he noted that the denial of the motion to take it up now “is not a denial of a request for this court to order that ballots received after election day be segregated so that if the State Supreme Court’s decision is ultimately overturned, a targeted remedy will be available.”
The justices’ action involved what might seem to be a technical practice, but it carries outsize importance because of Pennsylvania’s pivotal role in the presidential election. It prompted a fierce battle between the state’s Democrats and Republicans in a state won by Trump in 2016 by 44,000 votes, and critical to his reelection prospects.
The Pennsylvania Supreme Court — itself an elected, partisan body, with five Democratic justices and three Republicans — ruled in September in Democrats’ favor on a number of mail-voting changes.
The most important, and the only one challenged at the U.S. Supreme Court, was the decision that mail-in ballots received by 5 p.m. on Nov. 6 must be counted if they are postmarked by Nov. 3. If no postmark is discernible, the state court said, officials should presume it valid “unless a preponderance of the evidence” shows that the ballots was mailed after Election Day.
In the North Carolina case, a divided federal appeals court had upheld a decision of the state elections board to extend the deadline for receipt of mail-in votes postmarked by Election Day, calling the measure a “common sense change” at a time when the U.S. Postal Service is inundated with ballots.
In a 12-to-3 ruling, the U.S. Court of Appeals for the 4th Circuit rejected Republican efforts to block the extension, which would allow counting ballots received up to nine days after the election.
The appeals court ruling split the Republican-nominated judges on the circuit court. All three judges nominated by Trump voted with the majority, while three senior Republican jurists advised legislative leaders to take the case to the Supreme Court “immediately.”
Like Pennsylvania, North Carolina is a critical battleground with polls showing Trump and former vice president Joe Biden running in a dead heat. Trump won North Carolina in 2016, and along with Florida, it is seen as crucial to his reelection efforts.
Republican legislative leaders tried to block the deadline extension in state and federal court. A district judge rejected their request for an injunction because of concerns about changing voting rules so close to an election. The lawmakers, joined by national Republican committees and the president, then asked the appeals court to intervene.
At the Supreme Court, North Carolina House Speaker Timothy K. Moore and Senate President Philip E. Berger said that the extension could raise “the specter of a post-election dispute over the validity of ballots received during the disputed period.”
They said the actions of the bipartisan election board was an “unprecedented effort to usurp the North Carolina General Assembly’s prerogative to regulate federal elections in North Carolina.”
Attorney General Joshua H. Stein defended the elections board, saying it was doing exactly what the legislature had empowered it to do.
“The board — a bipartisan body whose members are appointed by the governor from lists submitted by the two major political parties — unanimously concluded that the challenged measures were appropriate in light of the COVID19 pandemic emergency and the resulting mail delays,” Stein’s brief to the Supreme Court said, referring to the disease caused by the novel coronavirus.
“In recent elections, the state board has frequently exercised its authority to extend statutory deadlines and make other adjustments to deal with exigent circumstances.”
For instance, in the past three years alone, the board has twice extended the absentee-ballot receipt deadline after hurricanes hit the state. “No one challenged those extensions,” Stein said.
In July, the Postal Service warned North Carolina that it might not be able to meet the state’s standards for return of absentee ballots, Stein said.
Supreme Court rejects request to extend Wisconsin’s deadline for counting mail-in ballots
Wednesday marked the third time this week that the high court has weighed in on voting-deadline challenges ahead of the election.
While the Supreme Court has routinely overruled federal judges who change the rules during an election — Wisconsin was an example of that earlier this week — it is rare for the court to intervene when a state court was interpreting the state’s constitution and laws.
Chief Justice John G. Roberts Jr. wrote in the Wisconsin case that, in general, he opposed federal judges intervening in the “thick of election season to enjoin enforcement of a State’s laws.” But the Pennsylvania case involved the authority of state courts to interpret their own constitutions, he wrote.
“Different bodies of law and different precedents govern these two situations and require, in these particular circumstances, that we allow the modification of election rules in Pennsylvania but not Wisconsin,” he wrote.
But it is now clear that is not a view shared by his conservative colleagues.
“The Constitution provides that state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules,” Gorsuch wrote in the Wisconsin case.
The Pennsylvania cases are Scarnati v. Boockvar and Republican Party v. Boockvar. The North Carolina case is Moore v. Circosta.
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