Pa. Dems Blast GOP's Bid To Revive Ballot Case At High Court

Law360 (October 26, 2020, 10:32 PM EDT) -- The Democratic Party of Pennsylvania struck back at Republicans' renewed attack on the deadline for state voters' mail-in ballots Sunday, arguing that it was too close to the election to revive the case now that newly minted Justice Amy Coney Barrett could break the prior tie on the U.S. Supreme Court.

Even under the expedited schedule Republicans requested in their filing Friday, the soonest the Supreme Court could rule would be in late October — outside the week of lead time the U.S. Postal Service had recommended in order for ballots to arrive by Election Day, the Democrats wrote in their brief opposing the Republicans' petition Sunday.

"By the time of any such order, it will be too late, according to the Postal Service, for all voters who have not yet mailed their ballots to ensure that their ballot is received by Election Day," the brief said. "Even worse, if this court were to issue a decision in [Republican Party of Pennsylvania's] favor late next week, a considerable number of voters will have already voted by mail and will now be told, retroactively, that their vote may have been submitted too late."

The Democrats urged the court to reject the Republicans' request for relief a second time. An evenly split court earlier in the month had let stand the Supreme Court of Pennsylvania's Sept. 17 ruling that ballots dropped off or mailed by Election Day could still be counted if they arrived at their county election offices by 5 p.m. on Nov. 6. Secretary of the Commonwealth Kathy Boockvar also filed a brief in opposition Monday, arguing the time for a ruling had passed.

"Instead of moving expeditiously, as it now claims circumstances require, the Republican Party waited until 9 p.m. on Friday, October 23 to file its petition for writ of certiorari and motion to expedite," Boockvar's brief said. "That is more than five weeks after the Pennsylvania Supreme Court's decision, and four days after this court declined to stay that decision."

Republicans and two state senators had appealed the state justices' ruling with an argument that the extended deadline effectively changed "Election Day" as it was defined by federal law. In allowing the counting of ballots that arrived after Election Day, and by assuming that ballots with a missing or illegible postmark had been mailed on time unless there was evidence otherwise, the state court had made it possible for ballots sent too late to still be counted, Republicans said.

The Dems' brief said "the only circumstance that had actually changed" since the 4-4 deadlock was that Election Day had gotten even closer, although it did not mention Justice Barrett as the likely tiebreaker.

The political parties had all asked the court to consider the case on the merits the first time around, but only because there would have been time to implement changes, the Democrats' brief said.

"RPP does not identify any change in the facts or law in the intervening days, much less the sort of extreme changed circumstances that would warrant the extraordinary relief it seeks. Nor does it identify any other legitimate basis for revisiting the court's decision," the Democrats' brief said.

A reversal would require a rush of last-minute voter-education efforts that contradicted the previous weeks of work, and it could push voters who thought they still had time to mail their ballots to need to vote in-person to guarantee they were counted, the Democrats said.

And the federal court stepping in would throw into question other states' ability to have the final say over their own election laws, the Democrats said.

"These concerns — the need to avoid severe last-minute disruptions in voting rules and the importance of proceeding cautiously in view of potential implications for other jurisdictions — are precisely why this court routinely refuses to change the rules of any election when it is fast approaching," the Democrats said.

The Democrats also argued that election officials around the state had already agreed to keep and count ballots that arrive after Election Day separate, so there wasn't as much need for the court to rush the decision.

"Assuming the ballots are segregated, RPP cannot contend that there is any need for this court to issue a decision before the election," their brief said. "Even assuming there were a legal basis for refusing to count those votes — and there is not — there is no reason to assume that the number of ballots received in that 69-hour window would be large enough to be decisive in the races for president and House of Representatives. If these votes are unlikely to bear on the outcome of any race, there will be no need for this court to grant certiorari and decide this case — especially given the difficult jurisdictional and merits issues the court would need to resolve."

Boockvar's brief noted that Pennsylvania was experiencing an increase in COVID-19 cases, causing more people to weigh voting by mail. Tuesday is the deadline for requesting a mail-in ballot.

"More than 1.1 million Pennsylvanians have applied to vote by mail since the Pennsylvania Supreme Court's decision and more than 168,000 have done so since this court declined to enter a stay," Boockvar's brief said. "Any Pennsylvanian who submits their mail-in ballot application today or tomorrow does so under the belief that there is ample time."

Counsel for the parties and representatives for Boockvar did not immediately respond to requests for comment Monday.

Although President Donald Trump's re-election campaign had not officially joined the case as of Monday evening, the campaign's deputy press secretary Thea McDonald said the campaign and Republicans had been fighting for a "free, fair election in Pennsylvania."

"The Trump campaign entirely supports the Pennsylvania GOP taking President Trump's fight to protect voters and keep the election on Election Day to the Supreme Court," McDonald said.

The Republicans are represented by John M. Gore and Alex Potapov of Jones Day, and Kathleen Gallagher and Russell D. Giancola of Porter Wright Morris & Arthur LLP.

The Democrats are represented by Clifford B. Levine and Alex M. Lacey of Dentons, Donald B. Verrilli Jr., Ginger D. Anders, Rachel G. Miller-Ziegler and Jeremy S. Kreisberg of Munger Tolles & Olson LLP, Kevin Greenberg, A. Michael Pratt and Adam Roseman of Greenberg Traurig LLP and by Lazar M. Palnick.

The case is Republican Party of Pennsylvania v. Boockvar et al., case number 20-542, in the Supreme Court of the United States.

--Editing by Haylee Pearl.

For a reprint of this article, please contact reprints@law360.com.

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