File photo of US Supreme Court. Photograph:( Reuters )
Should the vote in Pennsylvania have the potential to determine the outcome in the Electoral College and should those late-arriving ballots have the potential to swing the state — two big ifs — the U.S. Supreme Court might well intercede
President Donald Trump promised early Wednesday morning to ask the Supreme Court to intervene in the election. “We’ll be going to the U.S. Supreme Court,” he said. “We want all voting to stop.”
The first statement was premature. The second did not make sense.
The Supreme Court decides actual disputes, not abstract propositions, and then only after lower courts have made their own rulings. While there have been countless election cases filed around the nation, it is not clear which of them might reach the court in the coming days.
But one candidate is already on the court’s docket. Last month, the court refused to put a case from Pennsylvania on a fast track, but three justices indicated that the court might return to it later if need be.
On Wednesday afternoon, the Trump campaign asked the Supreme Court for permission to participate in the case alongside Republican state lawmakers and the Republican Party of Pennsylvania. The court has not said whether it would hear the case or when it might decide whether to grant review.
As far as voting is concerned, it stopped on Election Day. But some states allow votes cast by mail on or before Election Day to be counted if they are received up to several days afterward. In Pennsylvania, for instance, the state Supreme Court extended the deadline for receiving ballots from Election Day to three days later.
Should the vote in Pennsylvania have the potential to determine the outcome in the Electoral College and should those late-arriving ballots have the potential to swing the state — two big ifs — the U.S. Supreme Court might well intercede.
The Pennsylvania Supreme Court has ordered a three-day extension for ballots clearly mailed on or before Election Day and for those with missing or illegible postmarks “unless a preponderance of the evidence demonstrates that it was mailed after Election Day.”
Late last month, on Oct. 28, the justices refused a plea from Republicans in the state to fast-track a decision on whether the Pennsylvania Supreme Court had acted lawfully.
The court’s refusal to move more quickly came a little more than a week after it deadlocked, 4-4, on an emergency application in the case Oct. 19.
Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh said they would have granted a stay blocking the Pennsylvania Supreme Court’s decision. On the other side were Chief Justice John Roberts and the court’s three-member liberal wing: Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan.
Justice Amy Coney Barrett, who joined the court Oct. 27, did not take part in the decision not to fast-track the case. A court spokesperson said Barrett had not participated “because of the need for a prompt resolution” and “because she has not had time to fully review the parties’ filings.”
The U.S. Supreme Court has not hesitated to block orders from federal judges that sought to alter state rules for conducting elections. Rulings from state courts present more difficult questions because the Supreme Court generally defers to them in cases concerning interpretations of state law, while the Constitution empowers state legislatures to set the times, places and manner of congressional elections.
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In a statement issued when the court refused to speed the Pennsylvania case, Alito, joined by Thomas and Gorsuch, criticized his court’s treatment of the matter, which he said had “needlessly created conditions that could lead to serious postelection problems.”
“The Supreme Court of Pennsylvania has issued a decree that squarely alters an important statutory provision enacted by the Pennsylvania Legislature pursuant to its authority under the Constitution of the United States to make rules governing the conduct of elections for federal office,” he wrote, adding that he regretted that the election would be “conducted under a cloud.”
“It would be highly desirable to issue a ruling on the constitutionality of the state Supreme Court’s decision before the election,” Alito wrote. “That question has national importance, and there is a strong likelihood that the state Supreme Court decision violates the federal Constitution.”
But there was not enough time, he wrote. Still, Alito left little doubt about where he stood on the question in the case.
“The provisions of the federal Constitution conferring on state legislatures, not state courts, the authority to make rules governing federal elections would be meaningless,” he wrote, “if a state court could override the rules adopted by the legislature simply by claiming that a state constitutional provision gave the courts the authority to make whatever rules it thought appropriate for the conduct of a fair election.”
Pennsylvania officials have instructed county election officials to segregate ballots arriving after 8 p.m. on Election Day through 5 p.m. three days later. That would as a practical matter allow a ruling from the Supreme Court to determine whether they were ultimately counted.
Alito’s statement in the Pennsylvania case echoed an earlier concurring opinion by Kavanaugh in a voting case from Wisconsin. Kavanaugh also said that state legislatures, rather than state courts, have the last word in setting state election procedures.
Taken together, the Oct. 17 deadlock and statements from four justices suggest that Barrett could cast the decisive vote if the Pennsylvania dispute holds the key to the election.