WASHINGTON – The Supreme Court ruled Monday that absentee ballots in Pennsylvania can be received up to three days beyond Election Day, setting a precedent that could apply to some other states as well.
A shorthanded court, functioning with only eight members since the death of Associate Justice Ruth Bader Ginsburg, split 4-4 on the decision. Chief Justice John Roberts joined liberal Associate Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan while conservative Associate Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh formed the opposing bloc.
Because of the 4-4 tie, the lower court ruling by the Pennsylvania state Supreme Court stands and that court had ruled in favor of a three-day extension.
The justices’ order establishes the ground rules for mail-in voting in one of the nation’s key battleground states, where President Donald Trump and former vice president Joe Biden are fighting hard for its 20 electoral votes.
The ruling could have an impact in other states where the deadline for mail-in ballots has been the subject of court battles. Those include Michigan, North Carolina, Wisconsin, Minnesota, Georgia, Indiana and Montana.
The state’s Democratic Party initiated the legal action in Pennsylvania, urging state courts to extend the Nov. 3 ballot return deadline in light of the COVID-19 pandemic that presents risks for in-person voting. State Attorney General Josh Shapiro, a Democrat, also said the date should be extended, and the state Supreme Court agreed.
That left the state Republican Party and state Senate leaders to defend the original Election Day deadline. They asked the U.S. Supreme Court to block the state court’s ruling as a violation of federal law, which sets Election Day as the first Tuesday in November. They also said the extension violates the Constitution.
“This is an open invitation to voters to cast their ballots after Election Day, thereby injecting chaos and the potential for gamesmanship into what was an orderly and secure schedule of clear, bright-line deadlines,” Jason Torchinsky, the lawyer for state Senate leaders, said in court papers.
“In a year where there is a very real possibility that the final presidential election result hinges on Pennsylvania, the new rules imposed by the decision of the Supreme Court of Pennsylvania (a body elected in partisan elections) could destroy the American public’s confidence in the electoral system as a whole,” he wrote.
Democrats countered that because of the state court ruling, officials already have advised voters that ballots can be received until Friday, Nov. 6. As a result, they said, a reversal would add to confusion and invite additional litigation in other states.
“Their argument would almost certainly invalidate multiple state election laws on the eve of the election,” Clifford Levine, the state Democratic Party’s attorney, said in court papers.
Nationwide, more than 300 election-related lawsuits have been filed, largely as a result of problems associated with COVID-19 and the expansion of voting by mail. Republicans, including Trump’s reelection campaign, generally seek to limit such voting, while Democrats want to expand it.
The Supreme Court has been involved since April, when it ruled 5-4 along ideological lines that absentee voting in Wisconsin could not be extended past the primary election date. Most recently, it ruled that South Carolina can keep its requirement that absentee ballots include witness signatures.
More cases are headed to the court over the way mail-in ballots are distributed, delivered and counted in an election that Trump claims, without proof, has been rigged against him.