Supreme Court Justice Samuel Alito has asked Pennsylvania to respond by Saturday afternoon to a GOP request that the court order election officials not to count the mail ballots that arrive during a disputed, post-Election Day grace period.
But Alito’s order stopped short of giving Pennsylvania Republicans everything that they wanted — earlier Friday the state party had asked for an emergency Supreme Court intervention.
Instead, Alito ordered that election officials follow voluntarily guidance issued by the state late last month that they segregate the late-arriving ballots. Alito’s order said that if election officials counted those ballots, that they should be counted separately.
The state GOP has asked the court to order that officials only segregate and log the late-arriving ballots, and take no further action on them beyond that.
There has been no evidence put forward to suggest that election officials were deviating from Secretary of State Kathy Boockvar’s guidance to segregate the ballots. The Republicans instead pointed to their inability to verify that all of Pennsylvania’s counties were following that guidance.
By seeking out a response to the Republicans claims, Alito — who handled the court’s initial response to the GOP request because he oversees the circuit that contains Pennsylvania — nonetheless played along with the Republicans’ fear-mongering that the election officials couldn’t be trusted to follow the previous guidance.
Alito also seemed to buy the Republicans’ assertion that the minor tweaks that Boockvar made to the late-October guidance were another reason to be suspicious that the ballots aren’t being segregated.
Alito’s order said he was also referring the matter to the rest of the court.
County officials in Pennsylvania have repeatedly confirmed to TPM that their understanding of the updated guidance is that they are not to include the late-arriving ballots in the count tallies being released this week. It’s unclear if at some point they’ll release separately a count of the ballots that arrived after Election Day, but before Friday evening — the extended period that is currently being challenged.
Republicans are challenging the mail ballots that arrived in that time period because it was a state Supreme Court decision that extended the receipt deadline from Tuesday to Friday.
Their first two attempts to get the U.S. Supreme Court to reverse the deadline were not successful, but Trump’s latest appointee, Justice Amy Coney Barrett, has yet to weigh in on the dispute.
Pennsylvania officials have said that so far, it appears that the number of late arriving are very small compared to the overall total number of ballots, and, if current trends hold, unlikely to tip the election.