Justice Alito Tells Pa. To Separate Late-Arriving Ballots

Law360 (November 6, 2020, 9:29 PM EST) -- U.S. Supreme Court Justice Samuel Alito ordered that Pennsylvania counties segregate and separately count any mail-in ballots that arrived after the end of Election Day, partly granting the Republican Party of Pennsylvania's request for an emergency order as it contests a three-day deadline extension before the high court.

Justice Alito told counties that they had to follow guidance from Secretary of the Commonwealth Kathy Boockvar to segregate the contested mail-in ballots so they would not be potentially intermingled with ballots that arrived on or before Election Day, but he did not grant the Republicans' request that those ballots not be counted.

Alito's order came one day before the Associated Press declared that Joe Biden had won Pennsylvania's coveted electoral votes, securing the presidency and defeating President Donald Trump. Trump has not conceded, instead vowing to continue his fight in court.

The state party, represented by attorneys from Jones Day and Porter Wright Morris & Arthur LLP, had filed an emergency application for an injunction with the high court Friday afternoon, claiming that Boockvar's earlier directives were not binding and that 25 counties had not said whether they'd follow Boockvar's guidance. She had told the counties to segregate the ballots on Oct. 28, and she modified the guidance on Nov. 1 to say they could be counted separately.

"Until today, this court was not informed that the guidance issued on October 28, which had an important bearing on the question whether to order special treatment of the ballots in question, had been modified," Justice Alito wrote. "The application received today also informs the court that neither the applicant nor the secretary has been able to verify that all boards are complying with the secretary's guidance, which, it is alleged, is not legally binding on them."

The Republicans had been concerned that counties may not have been following Boockvar's orders, and asked that the court enter the order immediately to stop the disputed votes from being counted.

However, in a response brief filed Saturday, the Pennsylvania Attorney General's office urged the justices to deny Republicans' request, insisting that election officials are already segregating the contested late-arriving ballots as requested.

"There is no evidence that any county is disobeying that clear guidance to segregate these votes, and the Republican Party offers only speculation that certain unidentified counties may ignore that repeated guidance or that the Secretary will inconsistently change course," the state responded on Saturday. "Such conjecture does not justify the extraordinary relief sought here."

There is not a clear count of how many ballots each county had received after Election Day, but Boockvar estimated there would be relatively few. Even though the courts allowed the extension, with the prospect of those ballots being challenged later, the state encouraged voters to skip the U.S. Postal Service and drop off their ballots at election offices and drop boxes starting in late October.

Pennsylvania's Supreme Court, citing Postal Service delays and the Oct. 27 deadline to apply for a mail-in ballot under state law, ruled in September that ballots mailed by 8 p.m. Nov. 3 had until 5 p.m. Nov. 6 to reach their county boards of election and still be counted. Trump and Republicans have challenged such extensions in Pennsylvania and elsewhere, arguing they usurped legislators' power and extended the definition of Election Day.

Past efforts to have the Supreme Court stop Pennsylvania's deadline extension had failed, with a 4-4 split over whether to grant an earlier injunction, and the court declining to take up the case before Election Day but leaving the door open to hear it later and for the parties to seek a court order segregating ballots arriving after Nov. 3.

"Three justices have also stated that 'there is a strong likelihood that the Pennsylvania Supreme Court decision violates the federal constitution' and that 'the question presented ... calls out for review,'" the Republicans' petition for an injunction said. "RPP now files an application for such an order."

The party said it was still possible for Boockvar to change her guidance, or for counties to ignore her previous guidance not to mingle the recently arriving ballots with the ones received on or before Election Day, so it needed the court order.

"The secretary's guidances are not binding on Pennsylvania's 67 county boards of elections," the petition said. "The secretary acts primarily in a ministerial capacity under Pennsylvania law, which grants the county boards jurisdiction and authority to conduct the commonwealth's elections ... and in the fast-paced and chaotic pace of post-election events in Pennsylvania, it is unclear whether all 67 county boards of elections are currently segregating late-arriving ballots."

Counsel for the state Republican Party declined to comment Friday. Representatives of Boockvar did not immediately respond to requests for comment.

Boockvar is represented by J. Bart DeLone, Sean A. Kirkpatrick, Michael J. Scarinci and Daniel B. Mullen of the Pennsylvania Office of the Attorney General.

The Republican Party is 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 case is Republican Party of Pennsylvania v. Boockvar et al., case number 20A84, in the Supreme Court of the United States.

--Additional reporting by Suzanne Monyak. Editing by Brian Baresch.

Update: This story has been updated with Biden's win in Pennsylvania as well as additional details from the Pennsylvania attorney general's office. 

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