Why the US Supreme Court letting Pennsylvania's extended ballot deadline stand is one of its most important decisions this year

  • The US Supreme Court denied a challenge from Republicans seeking to block a state Supreme Court ruling extending the deadline for mail ballots to be received. 
  • The members of the court split 4-4, with Chief Justice John Roberts joining the three liberals on the court in denying the stay. When the court ties, the lower court ruling in question stands. 
  • The dissenting justices appeared to side with the Pennsylvania Republicans' argument that the state court infringed on the right of the constitutional right state legislature to determine the rules around the election. 
  • The deadlocked decision was a narrowly-missed disaster for Democrats, and highlights the importance of Judge Amy Coney Barrett's impending confirmation to the high court. 
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The US Supreme Court issued one of the most consequential legal rulings of 2020 on Monday, deadlocking 4-4 in denying an emergency application for a stay from Republicans in the Pennsylvania state legislature over an extended ballot receipt deadline for the November election. 

In a mid-September ruling, the Pennsylvania Supreme Court issued a number of major decisions in response to a lawsuit brought by the state's Democratic Party challenging some of the state's election rules. 

In a win for Democrats, the Court in Pennsylvania ruled to extend the deadline for mail-in ballots to be received from Election Day, November 3, to November 6, three days afterwards, even if the ballot does not have a fully legible postmark. 

The court also ruled that counties can have more than one ballot dropbox or in-person location for voters to submit mail ballots, and that individuals can only work as a poll watcher in the county where they're registered to vote, a loss for Republicans who sought to have out-of-county poll watchers permitted. 

The US Supreme Court took a long time, nearly two full weeks, to issue a decision, with no dissenting justices writing an opinion. Whenever the Supreme Court ties on a decision, the lower court ruling in question, in this case, the ruling from the Pennsylvania Supreme Court, stands. 

Chief Justice John Roberts joined the three liberals, Justices Stephen Breyer, Elena Kagan, and Sonia Sotomayor in voting to deny the stay while four of the conservatives, Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh indicated that they would have granted the stay.  

What exactly did the Supreme Court decide?

Because the US Supreme Court deadlocked, the original Pennsylvania Supreme Court decision stands for now. 

The nature of case itself was unusual, since the Supreme Court doesn't often rule on legal issues pertaining to state laws or decisions from state courts. And the court deadlocking 4-4 on this issue raises a host of implications for how the court may approach other issues involving state legislatures and state courts. 

The Republicans' challenge asserted that in ruling to adjust certain election rules in response to an outside lawsuit, the Pennsylvania Supreme Court violated Article II of the US Constitution, specifically the component that gives state legislatures, not the courts, final authority over a state's procedures for choosing their electors and conducting a presidential election. 

"If state courts are departing from state statutory law, there is an argument that they're doing something that is itself a violation of the federal constitution, which, after all, says that it's up to the state legislature to decide how electors are going to be selected," Paul Smith, the vice president for litigation at the Campaign Legal Center, explained to reporters in a Tuesday press briefing.

"The argument is that a state court, for example, extending the deadline for ballots, is interfering with the legislature's exclusive authority to set the method for selecting electors," he added of the GOP's argument. 

How does this affect Trump's chances in Pennsylvania? Will it impact the vote totals? 

While the ruling dealt a blow to Republicans in the state, the short answer is that we don't know exactly how much this will harm President Donald Trump's chances in Pennsylvania, though it certainly doesn't help them.

It will likely prevent hundreds to thousands of disproportionately Democratic ballots from being rejected for late arrival, a top reason mail-in ballots have been disqualified in primaries so far. 

Nearly every aspect of Pennsylvania's election system has changed since the 2016 election, when Trump won the state by a margin of around 44,000 votes, with 96% of the electorate voting in-person on Election Day. 

Before 2020, Pennsylvania only allowed absentee voting for those with an excuse and didn't offer any in-person early voting at all. Legislation signed by Governor Tom Wolf in 2019 allows any Pennsylvanian to vote by mail without an excuse, with some counties also offering "in-person absentee" voting before Election Day. 

Partly due to Trump's months of disparaging mail voting and telling his supporters the process is fundamentally fraudulent and untrustworthy, there's expected to be some stark partisan divisions in how Americans cast their ballots, with the mail vote in many states skewing Democratic while the in-person Election Day vote skews Republican.

According to data from the US Elections Project, registered Democrats are both requesting and returning mail-in ballots at higher rates than registered Republicans. As of Tuesday data, 73% of the returned mail ballots were submitted by registered Democrats, 18% were submitted by registered Republicans, and 8% submitted by non-affiliated voters. 

What does this say about how the court could handle future election cases? 

For election law experts, the 4-4 decision underscored the importance of Judge Amy Coney Barrett's impending confirmation to the high court. 

After three days of hearings last week, the Senate Judiciary Committee is expected to vote to advance her confirmation on Thursday to a full floor vote scheduled for Monday, October 26, just eight days before November 3. 

Had a Justice Barrett theoretically sided with the four conservatives to grant the Pennsylvania Republicans' request for a stay, that 5-4 decision could have caused massive voter confusion around when ballots are due and thrown Pennsylvania's election into chaos. 

"She easily could have been a fifth vote hear to side with the broad power of state legislatures against state Supreme Courts seeking to protect voting rights under the state constitution," Richard Hasen, an election law scholar at University of California Irvine, wrote in Slate. "If you thought the stakes of a Barrett confirmation couldn't get any higher, they just did."

The litigation over Pennsylvania's election rules isn't over yet, and Barrett's presence on the court could play a key role in any last-minute pre-election litigation or post-election lawsuits that make their way to the Supreme Court. 

"Since the Pennsylvania decision was a 4-4 split on a stay, we don't really know how strictly the Supreme Court views that rule and how it's going to enforce it," Smith said Tuesday. "But it could come up in the post-election phase as it did in Bush v. Gore, where several justices thought that the Florida Supreme Court was violating Article II by changing the rules contrary to the system that had been specified." 

As Smith noted, the Pennsylvania Republicans could try to challenge the law again or raise other similar disputes after Barrett is confirmed, either before or after the election, which could result in a more definitive ruling with major implications. 

"The decision is troubling in ways, because now you have a 4-4 deadlock, and there's no resolution on this issue with the extension of the mail ballot deadlines," Gineen Bresso, an election lawyer and current counsel at Holtzman Vogel Josefiak Torchinsky PLLC, told Insider on Tuesday, noting that other federal appeals courts, including the 7th and 11th Circuit Court of Appeals, have moved to block lower court decisions extending mail ballot deadlines.

"When you have a deadlock like this, if there's any post-election litigation and you have are split circuits, there could be an issue in resolving any election contests brought before the Supreme Court," she said. 

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