Telling the court that “the vote in Pennsylvania may well determine the next President of the United States,” the campaign of President Donald Trump went to the Supreme Court on Wednesday afternoon. In a 10-page filing in Republican Party of Pennsylvania v. Boockvar, the president’s campaign asked to join the Pennsylvania Republican Party’s appeal of a ruling by the Pennsylvania Supreme Court that requires election officials to count mail-in ballots received by Nov. 6. The justices rejected a plea from the party to fast-track their challenge to that ruling last week, but an opinion from Justice Samuel Alito left open the possibility that the court could take up the dispute again.
Under the state supreme court’s ruling, which relied on a provision in the state constitution, all ballots received by Nov. 6 will be counted if they are postmarked by Election Day, Nov. 3, lack a postmark or have a postmark that is unclear. On Oct. 19, the justices turned down a request from the Pennsylvania Republicans to put that ruling on hold while the party appealed. Four of the court’s conservative justices – Alito and Justices Clarence Thomas, Neil Gorsuch and Brett Kavanaugh – indicated that they would have blocked the state supreme court’s decision. Justice Amy Coney Barrett was not yet on the court at the time.
In an opinion that accompanied the court’s order denying the party’s motion to expedite consideration of its petition, Alito argued that it “would be highly desirable” for the justices to weigh in on the constitutionality of the state supreme court’s decision before the election, but he acknowledged that there was not enough time to do so. He added, however, that the Republican Party’s petition could still be decided “under a shortened schedule” later. Alito also stressed that ballots received after the polls closed on Election Day would be segregated, so that they could be excluded from the results if the state court’s decision were later overturned.
In its motion to intervene, the Trump campaign contended that the Supreme Court, rather than the Pennsylvania Supreme Court, “should have the final say” on the questions that could determine the outcome of the presidential election. In anticipation of that possibility, the campaign explained, it wants to join the Supreme Court proceedings. The Trump campaign, it reasoned, “has a direct, concrete stake in the outcome” of the proceedings “and, ultimately, the lawfulness of Pennsylvania’s vote tally.”
The Supreme Court instructed Pennsylvania election officials and the Pennsylvania Democratic Party, which are defending the state court’s ruling, to respond to the Trump campaign’s motion to enter the case by Thursday at 5 p.m.
Alito's opinion, of course, is that SCOTUS should take up the question of whether ballots that arrived after Election Day in the mail can be counted at all, and we know there's at least two votes on the Court (Kavanaugh and Gorsuch) for the Bush v. Gore Rehnquist opinion that only state legislatures should be allowed to make voting rules for a state, which would necessitate that possibly tens of thousands of votes be tossed, enough to give Trump Pennsylvania, and possibly the presidency if such a sweeping ruling was applied to all states retroactively for this election.