The Supreme Court dealt a blow to Republicans in battleground states Pennsylvania and North Carolina in a pair of emergency election appeals Wednesday night.
In the Pennsylvania case, the Court left in place the state's three-day grace period for ballots received after Election Day, but several justices indicated they could revisit the issue after Nov. 3 if necessary. In the North Carolina case, the justices outright rejected a Republican bid to shorten the state's mail-in ballot deadline from nine days to three after Election Day.
Republicans have pressed the High Court to stop extended grace periods for mail-in ballots around the country on election integrity grounds. Democrats say such accommodations are necessary given the risks of in-person voting during the pandemic. They also cite unprecedented strains on mail service. Hundreds of thousands of ballots are expected to arrive after Nov. 3.
Justice Amy Coney Barrett did not participate in either case, because she has not had time to review the filings, according to a Court spokeswoman.
Citing the coronavirus pandemic, the Pennsylvania Supreme Court ordered election officials to count any ballot that arrives by Friday Nov. 6 unless it appears to have been sent after Election Day. Keystone state Republicans argued this ruling violates the federal Constitution, and asked the High Court to say so as quickly as possible, preferably before Nov. 3.
There were no dissents from the unsigned order, which gave no reasons for denying the Republican request. The Court indicated that additional opinions may be forthcoming, underscoring the unusual nature of the case. Both the Trump and Biden campaigns consider Pennsylvania critical to the outcome of the election.
In a short separate statement, Justice Samuel Alito lamented that Pennsylvania's balloting is being conducted "under a cloud." He indicated that the Court could resolve the case after the election if necessary. Justices Clarence Thomas and Neil Gorsuch joined his opinion.
"I reluctantly conclude that there is simply not enough time at this late date to decide the question before the election," Alito wrote. "That does not mean, however, that the state court decision must escape our review. Although the Court denies the motion to expedite, the petition for [review] remains before us, and if it is granted, the case can then be decided under a shortened schedule."
Alito went on to say that he thinks the Pennsylvania Supreme Court's decision is probably wrong.
"The provisions of the federal Constitution conferring on state legislatures, not state courts, the authority to make rules governing federal elections would be meaningless if a state court could override the rules," the justice wrote. The Constitution provides that federal election procedures "shall be prescribed in each State by the Legislature thereof."
Earlier Wednesday, lawyers for the commonwealth told the Court that election officials will "securely segregate all mail-in and civilian absentee ballots received between 8:00 p.m. on Tuesday, November 3, 2020, and 5:00 p.m. on Friday, November 6, 2020, from all other voted ballots."
While Justice Brett Kavanaugh did not join Alito's opinion, he took the exact same position in a case decided Monday night from Wisconsin. That means Barrett may provide a fifth vote to say that state courts shouldn't rewrite federal election laws. Such a decision would give the Republican-controlled Pennsylvania legislature exclusive power to dictate election procedures. Republicans also control legislatures in battleground states like Florida and Wisconsin.
The Supreme Court has intervened to stop federal courts from tinkering with election procedures, the coronavirus pandemic notwithstanding, but Chief Justice John Roberts has voted with the Court's liberal wing to allow changes made by state courts. In a brief opinion Monday night, Roberts said that state law may sometimes require late-breaking adjustments, and state courts should have the final word on state law.
The Pennsylvania Supreme Court said the grace period was required by a voting rights provision in the state constitution. The provision requires that elections be "conducted in a manner which guarantees, to the greatest degree possible, a voter's right to equal participation in the electoral process." The decision also cited guidance from the Postal Service indicating that mail service in Pennsylvania has been slowed.
The Pennsylvania Supreme Court is an elected body. Democrats command a five-to-two majority.
In the North Carolina case, Roberts and Kavanaugh voted with the liberal trio to allow the extended nine-day deadline. That drew a dissent from Gorsuch and Alito, with Thomas noting his disagreement separately. The North Carolina legislature established a three-day post-election deadline for ballots, but in October a state court approved an agreement between the state board of elections and a left-wing political group to extend that grace period for nine days. Gorsuch said that agreement made the case especially troubling.
"This case may be even more egregious, given that a state court and the Board worked together to override a carefully tailored legislative response to COVID," Gorsuch wrote.
Wednesday's cases are No. 20-542 Republican Party of Pennsylvania v. Boockvar and No. 20A72 Moore v. Circosta.