Top attorneys for Ohio, Missouri and nine other Republican-led states told the justices that a mid-September decision by the Pennsylvania Supreme Court agreeing to grant a three-day extension for the receipt of mail-in ballots rendered the election vulnerable to fraud.
"The decision provided a window of time after Election Day, when the preliminary results were announced, in which unscrupulous actors could attempt to influence a close presidential election," the state of Missouri said in a brief joined by nine other states including Florida and Texas.
In a separate brief, the state of Ohio stressed that it believed the Pennsylvania Supreme Court's decision granting the three-day extension ran afoul of constitutional provisions granting state legislatures the sole authority to manage how elections are conducted.
"This judicial policymaking unconstitutionally intruded on the legislature's power to make election law," the state argued. "To ensure that other courts in future elections do not follow the lower court's lead, this court must reverse."
The briefs come as President Donald Trump and top Republican allies have made unsubstantiated claims of voter fraud in recent days.
The Pennsylvania Supreme Court agreed to grant the three-day extension in order to accommodate both an expected surge of mail-in ballots amid the ongoing coronavirus pandemic, and the potential delayed mail delivery due to U.S. Postal Service operational cuts.
The decision also allowed county election boards to count ballots received without clearly legible postmarks.
Keeping the original Election Day deadline in place, the state court said, threatened to disenfranchise voters in violation of the Pennsylvania Constitution's free and equal elections clause.
The U.S. Supreme Court has been grappling with how to deal with the case since the end of September, when the state GOP asked the justices for a stay of the decision.
The justices ended up deadlocking 4-4 on whether to stay the decision, and later shot down a petition to hear the case on an expedited before Election Day even as they left open the possibility of hearing the case after the election.
In the meantime, election officials in Pennsylvania have ordered that all ballots received after Election Day be segregated and counted separately. It remained unclear as of Monday afternoon exactly how many potentially countable mail-in ballots were received in Pennsylvania in the three days after Election Day.
The state of Missouri in its brief on Monday claimed that mail-in voting is especially susceptible to fraud, pointing to a handful of examples in down-ballot races where outcomes were affected by fraudulent absentee ballots, including a state legislative race in Missouri in 2016 and a congressional election in North Carolina in 2018.
In Pennsylvania's presidential vote count, Biden currently leads Trump by more than 30,000 votes, with additional ballots yet to count.
Joining Missouri, Florida and Texas on the brief were Alabama, Arkansas, Kentucky, Louisiana, Mississippi, South Carolina and South Dakota.
The state of Ohio is represented by Solicitor General Benjamin Flowers and Chief Deputy Solicitor General Michael Hendershot.
The State of Missouri and the other states are represented by Attorney General Eric Schmitt and Solicitor General D. John Sauer.
The cases are Republican Party of Pennsylvania v. Kathy Boockvar et al., and Joseph Scarnati III v. Pennsylvania Democratic Party et al., case numbers 20-542 and 20-574, before the U.S. Supreme Court.
--Editing by Alanna Weissman.
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