WASHINGTON — The Supreme Court dealt a post-election defeat Monday to Republican officials in Pennsylvania by refusing to hear their appeal of state court rulings that allowed for the counting of mail ballots that were sent by Election Day, but arrived up to three days later.
Three conservative justices dissented, arguing the court should clarify the law before the next election.
Pennsylvania’s attorney general had urged the court to turn down the appeal because the election was over and the case was moot.
At issue, however, was a potentially important question for the 2024 election about whether state legislatures or the state supreme courts could have the final word on a state’s election rules.
Lawyers for Pennsylvania Republicans urged the court to rule that the Constitution gave only state legislatures the final word on the election rules. They pointed to a provision in a 2019 law that said mail ballots must arrive by Election Day.
Because of the pandemic, however, the Pennsylvania secretary of state recommended changes in the deadlines for counting mail ballots. As the U.S. Postal Service warned of delays, she said the state should count ballots that were in the mail by Election Day, but arrived up to three days later. The Pennsylvania Supreme Court agreed and adopted this rule for the 2020 election.
For a time in the fall, this dispute loomed large, particularly if the outcome of the presidential race turned on a very close vote in Pennsylvania. But President Joe Biden won the state by more than 81,000 votes, and his margin was unaffected by the fewer than 10,000 late-arriving ballots, which were counted separately.
Justice Clarence Thomas said Monday the court should have agreed to hear and decide the Pennsylvania case in the year ahead. The state’s decision to extend the deadline for three days “seems to have affected too few ballots to change the outcome of any federal election. But that may not be the case in the future,” he wrote. “These cases provide us with an ideal opportunity to address just what authority non-legislative officials have to set election rules, and to do so well before the next election cycle.”
Justices Samuel A. Alito Jr. and Neil M. Gorsuch filed a short, separate dissent.
The court’s action leaves unresolved one of the legal disputes that is likely to reappear in states where there is a partisan divide between the legislature and the governor.
The Pennsylvania dispute arose after the state legislature, in a bipartisan move, joined other states in 2019 and passed a measure that allowed all of the state’s eligible voters to cast their ballots by mail. The law said the ballots must arrive by Election Day.
But in late summer as millions of voters opted for a mail ballot to avoid exposure to the coronavirus, Pennsylvania’s Secretary of State Kathy Boockvar recommended relaxing the rule for counting late-arriving ballots. The Pennsylvania Supreme Court agreed and ruled that ballots that were put in the mail by Election Day could be counted if they arrived by Nov. 6.
Republican lawyers urged the U.S. Supreme Court to intervene and reverse that ruling, but their appeal was denied Oct. 28 based on a tie vote. Newly confirmed Justice Amy Coney Barrett recused herself, and the other eight justices split 4-4.
Alito, Thomas and Gorsuch filed a dissent saying the court should have intervened. There “is a strong likelihood that the state Supreme Court’s decision violates the federal constitution,” they wrote.
In December, after Biden’s victory had been ratified, Republican attorneys urged the high court to take up the Pennsylvania case and resolve the underlying legal dispute. Their argument rests on a provision in Article II of the Constitution that says, “Each state shall appoint in such manner as the legislature may direct” a slate of electors who will cast votes for the president and vice president.
They pointed to the 2000 Bush vs. Gore decision when Chief Justice William H. Rehnquist said in a concurring opinion that in presidential elections, the election laws passed by the state legislature should control the outcome, not the interpretations handed down by the state courts.