U.S. Supreme Court Rejects GOP Call Not to Extend Deadline for Mail-In Ballots

By Jerri-Lynn Scofield, who has worked as a securities lawyer and a derivatives trader. She is currently writing a book about textile artisans.

In the first of what will no doubt be a series of blockbuster voting rights rulings or opinions in this 2020 electoral season, the U.S. Supreme Court let stand a Pennsylvania Supreme Court ruling to count mail-in ballots received within three days of November 3rd’s Election Day, even if they lack a legible postmark.

For those keeping partisan score. this means the Court upheld the Democratic party argument, and rejected the Republican one.

The Wall Street Journal reports in Supreme Court Allows Extension for Mail-In Ballots in Pennsylvania:

The Supreme Court on Monday refused to disturb a ruling by Pennsylvania’s highest court that extended the battleground state’s deadline for accepting mail-in ballots, a win for Democrats that gives voters more time to navigate postal delays and avoid in-person voting.

The Court deadlocked 4-4 on this ruling. With last month’s death of Justice Ruth Bader Ginsburg, the Court currently only has 8 members, and in the event of ties, the lower court decision subject to appeal stands. But based on her past voting rights decisions, the Court would almost certainly have struck down the provision if Amy Coney Barrett’s nomination had already been confirmed and she had taken up the waiting seat on the Court (and voted rather than recusing herself). The Court declined to issue an opinion.

Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh opposed upholding the lower court’s order, leaving Chief Justice John Roberts and Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan on the other side.

According to Scotus blog, Supreme Court leaves in place order requiring Pennsylvania to count absentee ballots after Election Day:

The order came in a lawsuit filed by the Pennsylvania Democratic Party that challenged various aspects of the state’s absentee-ballot system in light of the coronavirus pandemic. Last month, the Pennsylvania Supreme Court, citing a voting-rights provision of the state’s constitution, ordered several modifications to voting rules, including extending the deadline by which mail-in ballots must be received in order for them to be counted. Previously, that deadline was Election Day, but the state court ruled that ballots should be counted if they are received up to three days after Election Day unless a “preponderance of the evidence” shows that a ballot was mailed after Election Day. That means that ballots lacking clear postmarks may be counted if received by Nov. 6.

Republican legislators and the Pennsylvania Republican Party went to the U.S. Supreme Court on Sept. 28, asking the justices to block the portion of the Pennsylvania Supreme Court’s order that extended the mail-in ballot deadline. They argued that the state court’s ruling will allow ballots cast and received after Election Day to be counted, thereby violating federal election law, which establishes a single Election Day, as well as the U.S. Constitution, which gives state legislatures the power to set the time, place and manner of federal elections. If the justices did not step in, the legislators warned, the state court’s order “could destroy the American public’s confidence in the election system as a whole.”

Pennsylvania officials urged the justices to stay out of the dispute, dismissing the requests from the legislators and the Pennsylvania Republican Party as an effort to “supplant the Pennsylvania Supreme Court’s interpretation of Pennsylvania law” and “intrude upon Pennsylvania’s sovereignty.” And even if federal election law and the U.S. Constitution were at issue in the dispute, they continued, neither the Pennsylvania Republican Party nor the Republican legislators have a legal right to sue, known as standing. Furthermore, they argued, the state court’s order does not violate federal election law because, although it allows votes to be counted after Election Day, it does not allow votes to be cast after Election Day. Similarly, the order does not violate the U.S. Constitution because the state court determined that it was necessary to protect the rights of Pennsylvania voters under the state constitution – which, the justices have acknowledged, can limit the state legislature’s power under the U.S. Constitution’s elections clause.

The Wall Street Journal account emphasised Pennsylvania’s importance in the upcoming election:

Pennsylvania is among the most hotly disputed states in the coming presidential election. It narrowly awarded its 20 electoral votes to President Trump in 2016, but recent polls have shown Democratic presidential nominee Joe Biden ahead in the state. Democrats have turned heavily to absentee ballots in response to the pandemic, so the extension could help Mr. Biden if ballots delayed in the mailstream tilt his way.

President Trump has said he expects the Supreme Court to help decide the presidential election, and pushed to confirm Judge Amy Coney Barrett, his nominee to replace Justice Ginsburg, in time to participate. Mr. Trump’s two previous appointees, Justices Gorsuch and Kavanaugh, voted for the Republican request to cancel the deadline extension. Judge Barrett, questioned at her confirmation hearing last week by Democratic senators, said she would consider whether to recuse herself from an election case involving Mr. Trump should one arise.

Senate Majority Leader Mitch McConnell still promises her confirmation by Election Day and I see no reason to doubt that assessment.

Fasten Your Seatbelts, It’s Going to Be a Bumpy Night

As election season unfolds, to quote one of my heroines, Margo Channing, “Fasten your seatbelts, it’s going to be a bumpy night.”

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  1. flora

    Good. Adding: After Bush v. Gore the SC doesn’t have much runway for the appearance of partisan meddling in state/national elections. imo.

    1. Jerri-Lynn Scofield Post author

      I agree, adding, that decision has to have made the list of the top-10 worst S Ct decisions.

    2. Redlife2017

      With at least 3 of the lawyers (Roberts, Kavanaugh, Barrett) who worked on Bush v Gore (on the Bush side) now on the Supreme Court, that does seem a bit of hope over experience.

      I do think that of the three, Roberts does seem to not want to appear too partisan. But the other two? Kavanaugh has shown he stands with Alito, Thomas, and Gorsach. And Barrett? It would take a miracle for her to not rule with those guys. She literally ruled that a woman who was raped by a country prison guard in prison whilst he was working couldn’t sue the county…because raping her wasn’t part of his job description. Ergo the county has no liability.

      With that in mind, she does not strike me as someone who would argue against the legal reasoning that the Republicans have put forward (that the state Supreme Court acted unconstitutionally in relying on the state constitution against the wishes of the state legislature). So Pennsylvania may be safe for now, but anything that comes up on the day or after the election is going to be awful.

      I would like to note – this is not me being pro-Biden, by the way. I didn’t vote for the dude. I just don’t like the direction this is all going for the long-run…

      1. JWP

        Agreed on a bad direction. Long term, until Marbury v Madison is overturned, legislating from the bench will be the norm, as congress cannot pass anything and public trust in it is so low no one will think twice. It’s only a matter of time until emergency powers of the president become powers at all times. Thats when the REAL fascist danger starts.

        Barrett strikes me as the perfect GOP economic pawn. Remains silent on the social issues and might even refuse to hear cases about them, but will work vigorously to ensure the corporatocracy is expanded. Whether it be finding a way to make m4a unconstitutional or some other bench legislation, she is worse then even Gorsuch with the corporate stuff.

        1. JWP

          A bit radical here, but I really see a grim horizon for us young people with this type of court with this much power in the times we face.

          1. Janie

            My sympathy, and the only advice I can give: cultivate your garden, family, neighbors, community. Learn how to use manual tools and maintain your things, mend your clothes. Et cetera. (Sorry for offering unasked-for thoughts, but parental habits die hard.)

  2. AnonyMouse

    Roberts doesn’t want the reputation of “The Roberts Court” to end in court packing or widely perceived partisan hackery and illegitimacy. (It’s going to, though, so whatever valiant efforts are taken to this effect are being done in vain.)

    From a UK perspective, frankly, the whole institution of the Supreme Court needs to be abolished or reformed. It is truly ridiculous that a body that is supposedly charged with neutral “interpretation” of the constitution as it relates to laws ends up deciding virtually every issue in public life and almost always splitting along utterly partisan lines. I don’t know what the solution is, but if court-packing accelerates the decline of the institution’s perceived legitimacy and leads to reform more quickly, let it happen.

    In particular on these issues. I see arguments that allowing the states to control and administer elections provides some kind of extra safeguard against tyranny or the power of the presidential incumbent. Yet it also leads to this ridiculous patchwork of laws and rules, applied inconsistently, allowing for so much of what we might call “dicking about” with the process that it can almost always be interpreted as illegitimate.

    The UK is hardly a flawless country – you can argue about first past the post, the number of constituencies, the unelected but toothless upper house, and so on until the cows come home – but I have never had any issue casting a vote in any election and the procedure, as far as I know, is the same everywhere. Extremely simple both in person and by mail.

    1. Bill Smith

      Is that the SC’s problem or Congress’s problem as they can’t get anything done? And when they do pass something it often has errors.

  3. gc54

    If the issue is, as it should be, the legitimacy of votes cast then why in Dog’s name are those with illegible postmarks allowed? Will envelopes be retained after the election to assess what fraction came in when in that state?

    1. Nakatomi Plaza

      You want to disallow a valid vote because the postmark was smeared or rendered illegible for reasons out of the voter’s control? Why? What is gained by that?

      I get discouraging fraud (the infinitesimal amount that exists), but too much of this is now blatant voter suppression engineered to benefit one particular candidate.

    2. rd

      Illegible postmarks are put on them by the USPS, a federal corporation, It is not the voter or even the state/county board of elections that does that and they have no control over it. If the postmark is illegible but arrives on time it should count or it is the federal government disenfranchising a voter.

      I find it interesting that the judges always bleating about states rights in numerous cases, especially abortion rights, want to start taking on election rules in states, especially now that they have gutted the Voting Rights Act in order to give the states more control over their elections, including arbitrarily forcing the reduction in the number of polling places established by counties.

      I think 2020 is turning into the Year of Republican Hypocrisy. I think this is why Roberts sided with the liberal wing on this one, to defuse this particular hypocrisy.

  4. L

    It is also telling, as others have noted that the “swing justice” is now a Bush appointee. And his heresy against the conservative views is… letting people vote. Naturally the originalists like to emphasize the premise that they do not consider effects when ruling but it is funny how all their favored rulings have the effect of supporting republican goals.

  5. Adam1

    LOL. Signatures are a legal mine field for republicans in this situation. I’m not a lawyer, but I work for a financial institution and I have had conversations with internal counsel about signatures.

    If you recall from movies you’ve probably seen where some of the characters are obviously illiterate and are asked to “sign” or “leave their mark”. Well historically it’s not that your signature is yours based upon someone else being able to say yes that’s XYZ’s signature (technically that’s “here say” – they can and have been forged), but whether or not you put your mark on the paper and are willing to claim/acknowledge it’s your signature. Fraud occurs when you say that’s not your “mark” when it really is.

    Note, documents like wills and property deeds which have long histories traditionally required witness signatures. This effectively requires multiple parties to commit fraud if fraud is to be committed which is more difficult than an individual fraud.

    If the courts don’t tread lightly they will effectively open Pandora’s box on all contract law. Or at least create a very slippery slope for any contract law involving signatures or at least un-witnessed signatures.

    1. RockHard

      I actually just got an email from my county election board saying I needed to verify my signature, which is interesting – I’ve voted exclusively by mail for about 10 years and it’s the first time this has happened. I’ll readily admit that I have an inconsistent signature. I submitted the affidavit they wanted, a copy of my drivers’ license (I think that has a signature although it’s totally illegible) and hope my vote will count.
      But thinking on it, it’s ironic. I could walk into a store today, plunk down my credit card, spend $10K, and verify it with a finger-drawn “signature” (more like a line) on a screen, and my bank would be completely OK with that. I suppose that’s for the reasons you state – unless I contest the charge, I’m on the hook for the payment.

  6. jackiebass

    I chuckle to myself any time I hear a republican say they are in favor of allowing all to vote . Then they do everything possible to suppress the vote. They impose qualifications to register and cast a vote that makes it difficult if not almost impossible for some to vote. Then you have ridiculous wait times. Like determining the number of reps from each state being determined by population, the number of polling places should have similar qualifications. In a country that pretends to be democratic we certainly don’t practice what we preach. Actually if you consider all of the factors influencing the outcome of an election, the US is no better than places like China or Russia. Even our court system has become political to the extent judges base their opinions mostly on their social and political beliefs. We live in a failed democracy and I believe it was by design. The founders establishes a system of government that makes democracy impossible.Bob Dylans line “You are Only A Pawn In their Game” describes our government.

    1. apleb

      A single fact which it seems to exists in all anglo culture countries that shows how the elite doesn’t want the rabble to vote at all, is having to vote on work days, when poor people are at work.
      Elections need to be on a normally work free day, e.g. a sunday. So the maximum number of people can easily vote.

      The US just goes the extra mile with voter registration that is actually voter repression in practice, fiddling with the number of polling stations, sometimes poll taxes or other onerous requirements, etc.

  7. LowellHighlander

    Let’s remember that this all part-and-parcel of keeping everyone focused on running a duopoly; the Democrats fought like hell, and ultimately successfully, to keep the Green Party’s ticket off the ballot in Pennsylvania (and Wisconsin).

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