Pennsylvania Republicans filed an emergency request with the Supreme Court on Friday, asking it to order that late-arriving ballots — ballots that are currently being segregated from the state’s tally due to a deadline dispute — remain uncounted while the case is pending.
Pennsylvania Secretary of State Kathy Boockvar (D) has directed election officials to keep those ballots separate from the count of Pennsylvania votes that is currently underway.
The dispute is over the deadline by which mail ballots can be received in the state. Twice already the Republicans have failed to get the Supreme Court to order that ballots arriving after Election Day be rejected.
In the filing, the Republicans cited a concern that, absent a Supreme Court order, individual counties might deviate from Boockvar’s guidance and start counting those ballots.
But given the language of what kind of order they want from the Supreme Court, it appears Republicans are seeking to avoid a scenario where election officials count those ballots separately and publicly release that tally.
The GOP wants the Court to tell the officials that they can “segregate” and “log” those ballots, but take no other action with them.
If current trends hold, it appears extremely unlikely that Pennsylvania’s presidential election will come down to those ballots arriving in the state’s three-day grace period for receiving mailed-in votes after Tuesday.
In a filing related to another procedural issue that had come up in the case, Pennsylvania Democrats argued that the Supreme Court should avoid taking any action in the case while it was not clear that the disputed ballots would make a difference.
By seeking an emergency Supreme Court intervention now, Pennsylvania Republicans appear to be heeding the President’s demands that the election be litigated to the most aggressive extent possible. The legal gambits appear aimed at sowing confusion and uncertainty around the election that at this point appears to be tilting heavily towards former Vice President Joe Biden.
In the Pennsylvania case, the Republicans are arguing that a state Supreme Court decision extending the mail-ballot deadline should be reversed. Their arguments rest on an extreme and controversial claim – not yet endorsed by a Supreme Court majority — that changes to a state’s election rules that are made by an entity other than the state legislature are a violation of the U.S. Constitution.
The first time the Pennsylvania dispute reached the U.S. Supreme Court, several weeks before the election, the justices deadlocked 4-4, which allowed the extended deadline to stand. The second time, just days before the election, the U.S. Supreme Court also declined to step in to reverse the extension, though the vote count for that decision is not fully clear. At that point, Trump’s newest Supreme Court appointee, Justice Amy Coney Barrett, was on the court, but did not participate in that vote because she had joined the bench just a few days prior.
Three of the conservative justices at the time released a statement suggesting that they’d be willing to reject the late-arriving ballots after the fact and they invited the Republicans to seek the court’s intervention if those ballots weren’t being segregated.
It will take the votes of only four justices for the court to grant full review the case’s underlying claims — which could have major repercussions for voting rights down the road. But the court may decide to hold off on going that route while the election remains in flux.