Lawyers for the top Republicans in the Pennsylvania state Senate on Monday asked the U.S. Supreme Court to stop an order from the state’s highest court allowing mail-in ballots received three days after Election Day to be counted if they are postmarked by November 3.
The Supreme Court’s response could decide whether a significant number of ballots are counted in a key battleground state that was decided in 2016 by razor-thin margins.
Democrats welcomed several of the Pennsylvania Supreme Court’s election rulings in mid-September, including the extension of the mail-in ballot deadline, the expulsion of the Green Party from the state’s presidential ballot and a refusal to meet Republicans’ request that out-of-county poll watchers be allowed. But Republicans won on so-called “naked ballots,” or ballots lacking an inner secrecy envelope, which the court ruled wouldn’t be counted.
In their request to stop the counting of late ballots, Pennsylvania Senate Republicans argued that the state court’s ruling was a violation of federal law that mandates holding elections on a single day and a violation of the U.S. Constitution’s Elections Clause because it was a decision by a court, rather than the state legislature.
“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,” their lawyers wrote in Monday’s filing.
Ballots arriving late have long been a concern of Pennsylvania Democrats, with mail delays plaguing some areas in the state ahead of an expected avalanche of mail-in voting. In 2016, President Trump won Pennsylvania by about 44,000 votes.
In the state’s primary in June, counties received over 100,000 mail-in ballots after Election Day, with most of them coming in the three days afterward, according to testimony in another case from Kathy Boockvar, secretary of the commonwealth. Democrats are expected to vote by mail at a higher rate than Republicans, and late Pennsylvania counting has tended to favor Democrats in what Ohio State University Law School Professor Edward Foley has dubbed the “blue shift.”
Republicans Joseph Scarnati and Jake Corman, president pro tempore and majority leader of the Pennsylvania Senate, signaled early last week that they would appeal the state Supreme Court’s ruling on late ballots with an application to the state’s high court to stay the decision. On Thursday, their request was denied. As was the case in the state court, the U.S. Supreme Court is likely to ask state Democrats for a response.
The application is the first election case to be filed in the U.S. Supreme Court since the death of Justice Ruth Bader Ginsburg in mid-September.