Claiming that it “is currently unclear whether all 67 county boards of elections” in Pennsylvania are following instructions to segregate mail-in ballots that arrive after Election Day, Republicans on Friday asked the Supreme Court to order election boards to keep those ballots separate and to refrain from counting them while the Republicans’ legal challenge to those ballots remains pending. The request was the latest development in the battle for Pennsylvania’s 20 electoral college votes, but it came after Democrat Joe Biden had pulled ahead in the vote count in the state. And news reports suggested that the number of ballots received after Election Day might not ultimately be enough to affect the outcome in Pennsylvania.
The 11-page filing came in the challenge by Pennsylvania Republicans and Pennsylvania legislators to a ruling by the Pennsylvania Supreme Court that requires the state to count any ballots received by Friday, Nov. 6, unless they are postmarked after Election Day or there is other strong evidence that they were mailed after Election Day. The Pennsylvania Republicans and legislators had asked the justices to put that ruling on hold and, later, to fast-track their consideration of a petition for review of the state supreme court’s decision.
The justices turned both requests down. In a statement regarding the justices’ denial of the motion to expedite consideration of the petition for review, Justice Samuel Alito stressed that the court could still consider the petition “under a shortened schedule” if granted after the election. He also noted that the state had directed county election boards to keep the ballots that arrived after the Election Day and before the Nov. 6 deadline separate, so that a “targeted remedy” would be available if the Pennsylvania Supreme Court’s decision were “ultimately overturned.”
In their filing on Friday, the challengers acknowledged that Pennsylvania election officials had “purported to direct” county election boards to segregate later-arriving ballots. But, the challengers continued, the directions that state officials have given the boards are not enough to preserve the challengers’ right to the “targeted remedy” that Alito described. The election boards are not required to follow the directions from election officials, the challengers emphasized, and neither lawyers for the challengers nor election officials had been able to confirm that all of the boards would indeed follow those directions.
“In short,” the challengers concluded, “an order from the Court is badly needed.” But because merely separating the later-arriving ballots would not necessarily be enough, they added, the court should instruct election boards “to log, to segregate, and otherwise to take no further action” on mail-in ballots received after Election Day.
Update (Friday, Nov. 6, 8:30 p.m.): In a brief order on Friday night, Alito – who has primary responsibility for the geographic area that includes Pennsylvania – ordered county election boards to keep mail-in ballots received after Election Day separate and, if they are counted, to count them separately.
Until Friday’s filing, Alito stressed, the Supreme Court was not aware that the instructions from state officials – which, he wrote, “had an important bearing on the question whether to order special treatment of the ballots in question” – had been changed on Nov. 1 to allow the ballots to be counted. Moreover, Alito continued, Friday’s filing “also informs the Court that neither” the challengers nor state election officials have “been able to verify that all boards are complying with” the directions.
Alito indicated that he would share the challengers’ request with his colleagues “immediately.” Meanwhile, he ordered state election officials and the Pennsylvania Democratic Party to respond to the challengers’ request by Saturday, Nov. 7, at 2 p.m.
This post is also published on SCOTUSblog.