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Supreme Court declines to weigh in — for now — on deadline to return Pennsylvania mail ballots

By Jonathan Lai, The Philadelphia Inquirer on

Published in News & Features

PHILADELPHIA — The Republican Party of Pennsylvania's attempt to fast-track a potential U.S. Supreme Court decision on whether to overturn the state Supreme Court's extension of the mail ballot deadline was denied Wednesday.

The party's request to have the court take up the case still remains open, but the court denied the request to expedite the process. That means the court could still take up the case and ultimately reverse the deadline extension, even after Election Day.

Pennsylvania law requires mail ballots to be received by county elections offices by 8 p.m. Eastern time on Election Day, but the Pennsylvania Supreme Court last month said ballots can be received by mail until 5 p.m. Friday, Nov. 6, if they are either postmarked by Election Day or have missing or illegible postmarks. Republicans challenged that, including in two separate requests that the U.S. Supreme Court step in and immediately block the extension.

The U.S. Supreme Court tied 4-4 last week on whether to grant those emergency requests, meaning they were denied. Democrats have feared that this week's installation of Justice Amy Coney Barrett could tip the balance on a new request that the state Republican Party filed Friday night, including the request to fast-track the case.

Barrett did not participate in the decision-making process on Wednesday's decision not to expedite.

The Republican Party argues that the state court's deadline extension will allow mail ballots to be cast and counted after Election Day, violating federal law setting one national Election Day and usurping the state Legislature's constitutional right to determine the rules for elections.

 

Several of the court's conservative justices appear willing to back that argument, with Justice Samuel Alito writing Wednesday that "there is a strong likelihood that the State Supreme Court decision violates the Federal Constitution."

He was joined by Justices Clarence Thomas and Neal Gorsuch.

And while Alito and the other justices "reluctantly conclude that there is simply not enough time at this late date to decide the question before the election," they noted that the state had earlier Wednesday told counties to keep late-arriving ballots segregated from ballots arriving before 8 p.m. on Election Day.

That would allow the court to rule later on whether ballots arriving under the deadline extension should be counted; if they are not, they would already be separated and could be thrown out.

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