The Pennsylvania GOP has gone back to the U.S. Supreme Court and the state supreme court in an effort to renew its objection to the counting of mail-in ballots that arrive after 8 pm on Election night (as set forth in the state statute) to include all ballots arriving within three days of election day postmarked by election day or without a legible postmark. This comes just a few days after the Supreme Court deadlocked on the question thereby leaving the deadline in place. The GOP’s play is unlikely to work, first, because the chances are still small that the election would come down not only to Pennsylvania but to these later arriving ballots; and second, because of the reliance interests created by the Supreme Court’s earlier failure to reverse the extension. If it does come down to all that, the request to expedite the cert. petition would put Judge Amy Coney Barrett, soon to be the ninth Justice, in an awful position, perhaps increasing the chances she will recuse in the litigation.
I’ve already explained the legal issues involving Article II of the Constitution in this Slate piece. To simplify a bit, the GOP claim is that a state supreme court cannot rely upon a state constitution to protect voting rights by expanding rights under a state statute, because doing so usurps the power of the state legislature to set the rules for choosing presidential electors. Republicans asked the Supreme Court to reverse on this ground (and another, weaker ground) and the Supreme Court deadlocked, leaving the Pa. Supreme Court extension in place.
We are now just 9 days away from the election. The GOP’s motion to expedite in the Supreme Court suggests that briefing in the case be put on a lightning docket and end on October 28. That suggests a Supreme Court order no earlier than October 29, which is 5 days before election day. By then, millions of voters in Pennsylvania would have heard about the new deadline of a postmark by election day rather than receipt by that day.
The reliance interests of voters at that point would be tremendous; think of the Purcell Principle on steroids if the U.S. Supreme Court announces a rule change just a few days before the election about the deadline for the election, and doing so after the Supreme Court had a full opportunity to block the late receipt of ballots and failing to do so. How would word get out to Pa. voters who heard about the extension with enough time to mail the ballots to arrive by election day, especially with a postal service that says you need to give at least a week for mailing right now?
We’ve had a similar reliance situation to this in the recent South Carolina case. The Supreme Court held that the district court was wrong to eliminate the witness signature requirement for absentee ballots in the state, BUT it held that any ballots already returned without the signature and arriving within two days of the courts order without the witness signature should still be accepted. The reason for such a grandfathering in of the ballots is the reliance interest of voters on valid court orders. In that South Carolina case, only three Justices—Alito, Gorsuch, and Thomas—would have thrown out those ballots and made voters vote again. Kavanaugh and Roberts did not go along with that.
In this case, the reliance interests are much stronger because there would be no way for voters to vote again in time. It seems that the equities are clearly on the side of the Pennsylvania voters in this context.
So it seems unlikely that this gambit would succeed unless Justice Kavanaugh would see the reliance interests different in the PA case. If he would do so, it would not only be the reliance problem but a problem for his newest colleague (soon to be) Justice Barrett.
It takes only four votes to grant cert. and hear this case. But it takes five to expedite consideration of the case. Would four conservatives vote to hear the case and to expedite, putting Barrett in the position of casting the deciding vote? That would be awful for her, especially given the calls for her to recuse based upon President Trump’s statements that he’d want Barrett on the Court to help decide the election. (The Court could grant cert and not expedite, and then resolve the issue as to future elections not affecting 2020. There’s no reliance or recusal issues with doing that.)
All of this lines up to make it extremely unlikely this play by the GOP will work. It might even backfire with some Justices by putting them in a very difficult position right in the middle of the election.
The 2020 election is unlikely to come down to PA if the polling is accurate, and if it comes down to PA it is unlikely to be close enough that the mail-in ballots received after the election would make a difference in the election outcome. But if it does, the pressure on new Justice Barrett will be positively terrible.