“How Amy Coney Barrett could be key to new lawsuit to block Pa.’s mail-in ballot extension” (and reasons for my skepticism in this particular case)


A new federal lawsuit seeks to block Pennsylvania officials from counting mail-in and absentee ballots received within three days after Election Day, an extension approved by the state’s highest court and recently allowed to stand by the U.S. Supreme Court.

The latest challenge came as the state’s top elections official, Kathy Boockvar, urged voters not to count on the extension, and instead mail in their ballots right away to get their votes counted.

“I want to make it clear, I honestly don’t care what the Supreme Court said or didn’t say,” Boockvar said Wednesday. “Ballots need to be mailed. If they’re going to be put in the mail, they need to be put in the mail this week. If they need to be dropped off, it needs to be done on Nov. 3.”

In the latest lawsuit, filed Thursday in federal court in Pittsburgh, a Republican congressional candidate and four voters argue that extending the deadline was unconstitutional, and the state Supreme Court overstepped its authority when it enacted the change….

This is not the first time Republicans have tried to block the three-day extension. This past Monday, the U.S. Supreme Court narrowly declined to block the extension as requested by the state GOP. The justices deadlocked 4-4 on whether to take the case, resulting in the rejection.

Four conservative justices — Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh — sought to grant the request. Chief Justice John Roberts sided with the three remaining liberal members of the court.

But the justices did not explain their reasoning, and the latest lawsuit could potentially end with a different result if appealed to the high court. With the U.S. Senate set to quickly confirm Judge Amy Coney Barrett to replace Justice Ruth Bader Ginsburg, it’s possible the conservative bloc would have enough votes to intervene and put a stop to the ballot deadline extension.

You can find the new complaint filed at this link.

I have already written that if there is any post-election litigation, Judge Barrett could join with the four other conservatives in embracing a muscular version of the “independent state legislature” doctrine. That could pay a key role if, for example, the Pennsylvania or North Carolina supreme courts (both dominated by Democrats) relied upon the state constitution to extend deadlines for the conduct of a recount.

But this particular argument about the timing of those ballots would be a harder one before the Court, because the Court having once denied the stay lulled voters into reliance that these later accepted ballots would be counted. It would be a tough argument, even for the die-hard conservatives on the Court, to retroactively disenfranchise these voters after having not done it before the election. This would be much worse than what Justices Alito, Gorsuch, and Thomas (but not Kavanaugh and Roberts) were willing to do in the South Carolina witness signature case–which would have been to have all those people who relied upon the lower court order and send in a ballot without a witness signature complete a new ballot. This would be worse because there would be no remedy for disenfranchisement.

A Court majority that would do this would be doing something much worse than what the Court in Bush v. Gore did.

I think and hope I’m right on this one.

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