On Monday, Chief Justice John Roberts joined the three liberal justices on the Supreme Court to deny Republicans’ request to put a hold on a lower court’s order that would permit Pennsylvania ballots to be counted even if they arrived three days after the presidential election.
The lower court had ruled that if the ballots were postmarked by Election Day, they still had three days to be counted.
“The court’s four more conservative justices — Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh — would have halted a lower court ruling from taking effect, strongly suggesting that Chief Justice John Roberts sided with the three liberal justices to form a 4-4 tie that left in place the lower court’s decision,” The Hill noted.
“The Pennsylvania Supreme Court ruled in Democrats’ favor last month on a number of mail-voting rules: permitting voters to turn in ballots via drop box in addition to using the U.S. Postal Service; allowing ballots to be returned up to three days after Election Day; and blocking a Republican effort to allow partisan poll watchers to be stationed in counties where they do not live,” The Washington Post reported, adding, “The state court said such ballots must be counted if they are postmarked by Nov. 3 — and even if no postmark is discernible ‘unless a preponderance of the evidence’ shows that the ballots were mailed after Election Day.”
The State Senate Republican Caucus soon after filed a legal brief to obtain an emergency stay from the U.S. Supreme Court.
The stay request the Pennsylvania GOP filed stated, “In a year where there is a very real possibility that the final presidential election result hinges on Pennsylvania, the new rules imposed by the decision of the Supreme Court of Pennsylvania (a body elected in partisan elections) could destroy the American public’s confidence in the electoral system as a whole.”
In the stay request, the Republican Party of Pennsylvania stated:
This Court should adhere to the rule it set forth earlier this year. Like the district court in Republican National Committee, the Pennsylvania Supreme Court has created a strong likelihood that ballots cast or mailed “after the scheduled election day” will count in the upcoming general election in which millions of Pennsylvanians will cast their votes for President and U.S. Representative.
This is not a mere hypothetical concern. In the April 2020 Wisconsin primary, “many ballots arrived with no postmarks, two postmarks or unclear postmarks.” And a ballot mailed as late as November 5, 2020 in Pennsylvania has “more than [a] 98%” chance of being delivered by the Pennsylvania Supreme Court’s judicial received-by deadline of November 6, 2020. Thus, just as in Republican National Committee, this Court should stay that order insofar as it “fundamentally alters the nature of the election” by mandating a non-postmarked ballots presumption that allows counting of ballots cast or mailed after Election Day.