By Matt Fair

Law360 (September 28, 2020, 7:09 PM EDT) -- The Pennsylvania Senate's GOP majority leadership asked the U.S. Supreme Court on Monday to stay the state high court's recent ruling extending the deadline for receipt of mail-in ballots as a result of the coronavirus pandemic and reported postal service delays.

Majority Leader Jake Corman and President Pro Tempore Joseph Scarnati argued that the Pennsylvania Supreme Court's decision to extend the deadline improperly usurped the legislative branch's power under the U.S. Constitution to set the time for elections.

"The irreparable harm in this case is immediate and palpable," the pair argued. "The Supreme Court of Pennsylvania's decision blatantly usurps the power of the Pennsylvania General Assembly and inflicts confusion and chaos on the commonwealth's upcoming federal elections."

Scarnati said in a statement on Monday that he'd sought the stay "to ensure the election process in Pennsylvania is fair, transparent and timely."

The Pennsylvania high court ruled 4-to-3 earlier this month that the tight turnaround time in the state's new mail-in voting statute threatened to disenfranchise voters given the potential for delays in the U.S. Postal Service and the surge in demand for mail-in ballots amid the COVID-19 pandemic.

To account for potential post office delays, the court allowed ballots to be counted if they were postmarked by 8 p.m. on Election Day Nov. 3 and received by 5 p.m. on Nov. 6.

The decision also allowed ballots without a postmark to be counted if received before the new deadline.

The Republican leadership pounced on that portion of the ruling in their petition on Monday as they argued that it would lead to votes being cast after Election Day despite federal law setting the election date in stone.

"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," the petition said.

The Pennsylvania Supreme Court couched its decision on a reading of the state constitution protecting against interference by civil powers to prevent the "free exercise of the right of suffrage."

But the Republicans argued on Monday that the U.S. Constitution gave state legislatures the power to establish the "times, places and manner of holding elections," and that the Pennsylvania Supreme Court's decision had run afoul of the provision.

"Pennsylvania's period for absentee and mail-in ballot submission is unquestionably a regulation of the times, places, or manner of elections because it regulates the time during which absentee and mail-in ballots may be submitted to election officials," the petition said. "The Supreme Court of Pennsylvania's decision makes precisely the kind of policy choices the elections clause assigned to the various state legislatures."

A representative for the Pennsylvania Department of State did not immediately return a message seeking comment.

The GOP leadership is represented by Jason Torchinsky, Jonathan Lienhard, Shawn Sheehy and Dennis Polio of Holtzman Vogel Josefiak Torchinsky PLLC, Crystal Clark of the Pennsylvania Senate Republican Caucus, and Lawrence Tabas of Obermayer Rebmann Maxwell & Hippel LLP.

Counsel information for the respondents was not immediately available.

The case is Joseph Scarnati et al. v. Pennsylvania Democratic Party et al., case number 20A53, before the U.S. Supreme Court.

--Additional reporting by Matthew Santoni. Editing by Emily Kokoll.

Update: This story has been updated to include a comment from the Republican petitioners.

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