3 Justices Balk At Decision To Snub Pa. Mail-In Ballot Case

The U.S. Supreme Court said it would not hear Pennsylvania Republicans' challenge to an extended deadline for 2020 mail-in ballots because it was moot, but Justices Clarence Thomas, Samuel Alito and Neil Gorsuch disagreed in a pair of dissents Monday, saying the case raised issues that should be decided before the next election.

The Supreme Court majority said the Republican Party of Pennsylvania's case against the state over the Supreme Court of Pennsylvania's three-day extension to the deadline for ballots mailed on Election Day to arrive and be counted was moot, since the 2020 election was over and there were not enough ballots that arrived within that window — which had been set aside and not included in official results, per an earlier order from Justice Alito — to undo President Joe Biden's win in the state. But Justices Thomas and Alito dissented, with Justice Gorsuch joining the latter, saying the case raised issues of whether state courts can override legislators in setting election rules.

"That decision to rewrite the rules seems to have affected too few ballots to change the outcome of any federal election. But that may not be the case in the future," Justice Thomas wrote.  "These cases provide us with an ideal opportunity to address just what authority non-legislative officials have to set election rules, and to do so well before the next election cycle. The refusal to do so is inexplicable."

Former President Donald Trump's campaign's motion to intervene in the case was also dismissed as moot.

The 2019 expansion of mail-in voting by Pennsylvania's Republican-controlled legislature had required all ballots to arrive at local election offices by the end of Election Day in order to be counted, but under a challenge from Democrats, the state Supreme Court said in September that the election law's strict deadline and delays in the postal service threatened to disenfranchise voters whose ballots were mailed before Election Day but stuck in transit until after the deadline.

State Republicans petitioned the U.S. Supreme Court, and Justice Alito ordered any ballots that arrived after Election Day to be segregated, but the divided court declined to take up the full case before the election.

Biden defeated Trump in Pennsylvania by more than 80,000 votes — enough that the segregated ballots would not swing the election even if they were counted entirely for Trump.

The former president and Republican allies were rejected by the courts in several other attempts to overturn the state's election results, including the Supreme Court denying an injunction in U.S. Rep. Mike Kelly's lawsuit claiming all the state's mail-in ballots had been unconstitutional because the legislature had expanded mail-in voting without amending the state constitution. The Justices ultimately denied certiorari for Kelly's challenge as well Monday.

Justice Thomas said the Republicans had made a strong case that the state Supreme Court had violated the Constitution by overriding legislators on election law matters, and pointed to other rulings that had affected one election — a tight race for state senate in a district outside Pittsburgh, where the state justices' ruling that ballots could be counted without a handwritten date on their outer envelope gave the Democrat a narrow victory.

"Because the federal Constitution, not state constitutions, gives state legislatures authority to regulate federal elections, petitioners presented a strong argument that the Pennsylvania Supreme Court's decision violated the Constitution by overriding 'the clearly expressed intent of the legislature,'" Justice Thomas wrote. "We are fortunate that the Pennsylvania Supreme Court's decision to change the receipt deadline for mail-in ballots does not appear to have changed the outcome in any federal election. ... But we may not be so lucky in the future. Indeed, a separate decision by the Pennsylvania Supreme Court may have already altered an election result."

The dissenting justices said there was still a chance the circumstances of this case could repeat themselves, if the coronavirus pandemic were still an issue for the 2022 midterms or if parties sought to have the courts "change the rules" in their favor before a future election.

"Indeed, it would be surprising if parties who are unhappy with the legislature's rules do not invoke this decision and ask the state courts to substitute rules that they find more advantageous," Justice Alito wrote.

Justice Thomas said the tight deadlines in the lead-up to the next election, or in the space between when ballots are cast and when they're officially counted, made it better to consider the issue of the state justices' power before it comes up again in a future election.

"Postelection litigation sometimes forces courts to make policy decisions that they have no business making. For example, when an official has improperly changed the rules, but voters have already relied on that change, courts must choose between potentially disenfranchising a subset of voters and enforcing the election provisions — such as receipt deadlines — that the legislature believes are necessary for election integrity," he wrote. "Because the judicial system is not well suited to address these kinds of questions in the short time period available immediately after an election, we ought to use available cases outside that truncated context to address these admittedly important questions."

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

Pennsylvania 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. Degraffenreid et al., case number 20-542, in the Supreme Court of the United States.

--Editing by Marygrace Murphy.

Update: This article has been updated with more information and background, and with a response from the state.


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

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