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Supreme Court allows 3-day extension for Pennsylvania ballot counting

The justices divided 4-4, an outcome that upholds a state Supreme Court ruling that allowed election officials to receive and count ballots until Nov. 6.
Image: Long Lines Of Voters Wait To Cast Early Voting Ballots In Philadelphia
A voter casts her early voting ballot at a drop box outside of City Hall in Philadelphia on Oct. 17, 2020.Mark Makela / Getty Images

WASHINGTON — Election officials in the presidential battleground state of Pennsylvania must accept mail ballots that arrive up to three days after the election under an order issued Monday by the U.S. Supreme Court.

The ruling was a defeat for Republicans who said counting late ballots would inject chaos into an already complicated general election.

The justices declined to put a hold on a state Supreme Court ruling that said ballots arriving as late as 5 p.m. on the Friday after the election must be counted, unless there's evidence that a ballot was mailed after Election Day.

The eight-member Supreme Court, shorthanded since the death of Ruth Bader Ginsburg, tied 4-4 with Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh saying they would have granted a request by Republicans to put the lower court ruling on hold. Five votes are needed to grant a stay.

Under existing state law, ballots must arrive by 8 p.m. on Election Day in order to be counted. But the Pennsylvania court said the state constitution's free and equal elections clause required an accommodation in light of mail delays caused by the coronavirus pandemic. It determined that voters would be disenfranchised if their ballot got stuck in a mail sorting facility because of United States Postal Service delays.

Republican state legislators opposed the extension, describing it as “an open invitation to voters to cast their ballots after election day.”

But Democrats said the expected crush of voting by mail, and a warning from the Postal Service that delivery might be slowed, required a change in the normal deadline. Voters in the state can request a mail ballot as late as seven days before the election and it must be delivered to them within two days after the request is received, leaving only a short time for the completed ballot to be delivered.

More than 2.6 million Pennsylvania voters have requested mail ballots for the general election, nearly 10 times the number who voted by mail in 2016.

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Nancy Patton Mills, the chairwoman of the state’s Democratic Party, called the Supreme Court’s order a significant victory for voters.

“Republicans have had every opportunity to get serious and work to empower Pennsylvania voters, but at every turn they have chosen the route of attempting to sow confusion, disenfranchise eligible voters, and silence the voices of Pennsylvanians,” she said.

Before the Supreme Court issued its order, state election officials were following the state court ruling, telling Pennsylvania voters that their ballots will count if they are received by Nov. 6, provided they were mailed by Election Day.

Similar legal disputes are pending over mail ballots in Arizona, Michigan, North Carolina, and Wisconsin.