Pennsylvania Will Segregate Ballots Received After Election Day with SCOTUS Case Pending: Why This Was a Smart Move by the State, and Why This Doesn’t Solve the Reliance Problem or Standing Issue

As ELB readers well know, the Pennsylvania GOP has gone back to the Supreme Court seeking to reverse a state supreme court order which extended the deadline for receipt of absentee ballots from 8 pm on Election day until 5 pm on Nov 6 (3 days later). The first attempt to get this order failed with the Supreme Court deadlocked 4-4 on the question. This new second bite at the apple via a request to expedite a cert. petition and consideration of the case is currently pending before the Supreme Court. No doubt the petition was filed because the Court now has a new ninth Justice.

In the PA GOP’s most recent filing, the party indicated they’d be moving separately for an order to segregate ballots received after election day so that if a court later holds that the PA Supreme Court order was wrong, they should not be counted. But the GOP no longer needs to move for that. This letter indicates that the state is ordering those ballots separated.

Why would Democratic state officials do this? The most logical answer I can think of is that they want to prevent a situation where the later ballots are commingled with the earlier ballots, and in response the Republican state legislature says that the election was fundamentally unfair and the legislature tries to appoint its own state of electors by claiming that the state “failed to make a choice” for president under the Electoral Count Act. the logic is that it is far better to take that potential argument away than to allow those additional ballots to be counted in the event they are found to be illegally accepted.

I continue to think that the Court is unlikely to grant expedited consideration of the case on this question on both reliance and standing grounds, even if new Justice Barrett would agree on the merits in the abstract of the Article II challenge. Here’s what I wrote about the reliance question, with the point even clearer as we are six days from the election:

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.

And here’s what I wrote on the standing question:

An ELB reader writes in to note that it appears so far that only the PA Republican Party has filed a cert petition and request to expedite, and not the state legislature or Republican state legislative leaders (who had filed a request for a stay earlier that was denied on a 4-4 vote). Hard to see how the Republican Party has standing to raise the question related to the Legislature’s Article II powers. (They’d have a better shot at standing on their election day timing argument, but that one is very weak on the merits.)

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