Pennsylvania Republicans asked the U.S. Supreme Court again late Friday to overturn a mail ballot deadline extension ordered by the state’s high court, quickly returning to an issue on which the Supreme Court had only just deadlocked and raising the prospect of a different outcome after a new justice is installed next week.
The Pennsylvania Supreme Court ordered last month that ballots be counted if county elections officials receive them in the mail by 5 p.m. on Nov. 6, and are either postmarked by the Nov. 3 Election Day or have no or illegible postmarks. State law requires ballots to be received by 8 p.m. on Election Day to be counted, but the state court changed that deadline because of concerns that mail delays would disenfranchise voters.
In a filing Friday night with the nation’s high court, the state Republican Party made essentially the same argument it had unsuccessfully presented earlier to the same court: The Pennsylvania Supreme Court’s ruling allows ballots to be cast and counted after Election Day, the GOP said, violating the federal law setting one single Election Day across the country, and is unconstitutional because it takes away the state legislature’s power to decide how elections are run.
In a 4-4 split Monday, the U.S. Supreme Court did not grant that previous emergency request to step in and block the deadline extension. Friday night’s filing differs in that it is asking the court to take up the case itself and decide whether the state court ruled properly. And Monday’s all-but-certain confirmation of Amy Coney Barrett to the U.S. Supreme Court could tip the balance in deciding the new request.
The GOP on Friday night also asked the U.S. Supreme Court to fast-track the case, given that Election Day is just over a week away.
Also late Friday, the party asked the Pennsylvania Supreme Court to order any ballots received after 8 p.m. on Election Day be kept separate from the other ballots. That would allow them to be affected by a court ruling after Election Day. Otherwise, once ballots are counted and mixed together, there would be no way to remove them from the results.
Normally, a state supreme court has the last word on state laws. So the Pennsylvania Supreme Court's decision should have ended the matter. The US Supreme Court's 4-4 decision rejected the appeal, but if the Court had accepted the Pennsylvania Republicans' argument, we would have been in for a whole new wave of federal judicial oversight over election rules. That would spell bad news for state constitutional protection for the right to vote, which is broader than the safeguards afforded under the US Constitution. It could have also thrown Election Day and any post-election disputes into further chaos.
The Court declined that invitation with its 4-4 tie. Chief Justice John Roberts voted with the three liberal justices, but the four most conservative members of the Court, Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh, would have granted the request. Add expected-to-be Justice Barrett as the fifth vote, and the Supreme Court's doors could be wide open to undermine the protections for the right to vote embedded within state constitutions.
The US Constitution does not affirmatively grant the right to vote. Instead, the founding document construes the right to vote in the negative: states may not deny the right to vote based on certain characteristics, including race, sex, inability to pay a poll tax and age. In addition, the US Supreme Court has recognized the right to vote under the federal Equal Protection Clause, albeit, in my opinion, too narrowly.
State constitutions, on the other hand, more robustly protect the right to vote. Forty-nine of the 50 state constitutions affirmatively grant the right to vote by saying that citizens "shall be qualified to vote," "shall be entitled to vote" or similar language (only Arizona's does not). In addition, about half of the state constitutions have a provision saying that elections shall be "free," "free and open," or "free and equal."
Pennsylvania's constitution includes a "free and equal" clause, and the state supreme court has invoked that provision to provide more protection to the right to vote than federal courts do under the US Constitution. The Pennsylvania Supreme Court had issued a ruling that extended the absentee ballot receipt deadline to November 6, three days after Election Day, so long as the ballots were postmarked by November 3 or, for ballots without a postmark, there was no evidence that they were mailed after Election Day.
Normally, the state supreme court would have the final say on state law. But Republicans made a bold argument: the Pennsylvania Supreme Court's decision unconstitutionally took away power from the state legislature. Article II of the US Constitution provides that states shall appoint presidential electors "in such Manner as the Legislature thereof may direct." Similarly, Article I of the US Constitution grants authority to state legislatures to determine the "times, places, and manner" of holding congressional elections, subject to congressional oversight.
The Pennsylvania Republicans argued that the Pennsylvania Supreme Court's decision, which altered the statutory language to extend the absentee balloting deadline because of the pandemic, effectively took away the power of the state legislature to determine the "manner" of running elections.
Three justices bought into a similar argument in 2000 in Bush v. Gore. Chief Justice William Rehnquist, along with Justices Scalia and Thomas, argued that the Florida Supreme Court's decision in that case was so out of bounds that it took away authority from the state legislature to determine the "manner" of appointing presidential electors. But the other two conservative justices in the 5-4 majority did not sign on to that opinion.
A vote from a new Justice Barrett, who might eventually agree with her fellow conservatives on this point, could open the floodgates to the US Supreme Court potentially regulating every aspect of the election process. Any decision from a state court that involves a federal election -- which is to say, virtually all rulings from state courts about any aspect on how we vote -- would be subject to federal oversight.