Supreme Court won’t fast-track GOP bid to block Pennsylvania mail ballot extension

The Supreme Court on Wednesday rejected a request from Pennsylvania Republicans to fast-track their bid to block a mail-ballot due date extension in the key battleground state.

The development means the court would not consider the case until after Election Day, though the court’s three most conservative members indicated they would have preferred to rule on the extension before then.

Justice Amy Coney Barrett, who took the bench for her first day on Tuesday, did not take part in considering the case.

Justice Samuel Alito, in a statement joined by two fellow conservatives, wrote: “I reluctantly conclude that there is simply not enough time at this late date to decide the question before the election.”

The vote of five justices was needed to expedite a review of the case, which the GOP’s request failed to garner. The denial Wednesday, however, does not prevent the court from taking up the still-pending GOP request for a ruling on the merits, which would require approval from only four justices.

Alito, along with Justices Clarence Thomas and Neil Gorsuch, held out the possibility that the court could still act on the request in time to impact how votes are counted in Pennsylvania. They added that there is a “strong likelihood” the state court-ordered extension is unconstitutional.

“Although the Court denies the motion to expedite, the petition for [appeal] remains before us, and if it is granted, the case can then be decided under a shortened schedule,” Alito wrote.

Pennsylvania Attorney General Josh Shapiro (D) applauded the court for not fast-tracking the case, but allowed that the court could still act on the GOP request.

“The denial of expedited review is good for Pennsylvania voters, who will not have the rules changed on them on the eve of the election without proper review,” he said. “We know this fight may not be over and we are prepared.”

Shapiro urged mail-in voters to submit ballots to a drop box or county election office, a precaution that comes amid reports of continued Postal Service delays.

Some legal experts said that with the election just days away, it’s unlikely the court would shorten Pennsylvania’s receipt date for mail ballots after voters have come to rely on the three-day extension. Doing so would require throwing out ballots that arrived by Nov. 6 and aren’t postmarked after Election Day.

“Pennsylvania voters simply cannot return their ballots in time under the old deadlines,” Rick Hasen, a law professor at University of California Irvine, wrote on the Election Law Blog.

The Keystone State is a crucial battleground in the 2020 election after President Trump won it in 2016 by fewer than 45,000 votes. Supporters of Democratic presidential nominee Joe Biden are considered about twice as likely as Trump’s backers to vote by mail.

Pennsylvania is among several battleground states where disputes over voting laws have reached the Supreme Court during what is shaping up to be the most intensely litigated election in U.S. history.

Democrats and their allies have generally favored judicially ordered voting accommodations against the backdrop of the coronavirus pandemic. But the GOP and their allies say that by relaxing state voting restrictions, judges have unlawfully taken the management of elections away from state legislatures. 

Trump and his Republican allies also frequently claim, largely without evidence, that easing voting rules opens elections up to widespread fraud.

Wednesday’s ruling comes in response to Pennsylvania Republicans’ second recent attempt to roll back the state’s mail-in ballot extension.

The GOP on Friday asked the justices to fast-track the formal review of a major ruling by the Pennsylvania Supreme Court, which held that timely-mailed ballots must be accepted if they arrive by Nov. 6.

The request came less than a week after the Supreme Court left intact Pennsylvania’s mail-ballot extension with a 4-4 deadlock. 

The tie vote last week broke largely along ideological lines, with Chief Justice John Roberts joining the court’s three liberals in denying the GOP’s request to halt the state court ruling, while the court’s four most conservative justices indicated they would have granted it.

Justice Brett Kavanaugh, who sided with the court’s three most conservative members last week, appeared to shift his position Wednesday when he declined to join Alito’s statement.

Barrett, who formally joined the court Tuesday, took no part in consideration of the case.

“Justice Barrett did not participate in the consideration of this motion because of the need for a prompt resolution of it and because she has not had time to fully review the parties’ filings,” a court spokesperson said.

Updated at 7:37 p.m.