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Supreme Court won't immediately consider whether Pennsylvania can count ballots that arrive after Election Day

Newly appointed Justice Amy Coney Barrett sat this one out, taking no part in considering or disposing of the motion.
Mail-in ballots before being sorted at the Chester County Voter Services office in West Chester, Pa., last week.Matt Slocum / AP

The Supreme Court refused Wednesday to take another look on a lightning-fast track at the issue of late-arriving mail ballots in the presidential battleground state of Pennsylvania, leaving intact a lower court ruling that said the state must count ballots that arrive up to three days after the election.

It was the second time Republicans had asked the court to roll back the deadline. They lost Oct. 19 on a 4-4 vote, when the justices denied their request to put a hold on a lower court order extending the deadline.

Wednesday's vote appeared to be unanimous. Justices Clarence Thomas, Samuel Alito and Neil Gorsuch said while the court should decide the issue, there wasn't enough time to do so before the election.

In trying again, the Republicans apparently hoped that newly appointed Justice Amy Coney Barrett's arrival would help them prevail. But she sat this one out, taking no part in the consideration or disposition of the motion. A court spokeswoman said that was "because of the need for a prompt resolution of it and because she has not had time to fully review the parties' filings."

The issue could be pivotal in Pennsylvania, where more than 3 million people have requested mail ballots, nearly half the number of total votes cast four years ago. Donald Trump won the state in 2016 by just over 44,000 votes, a margin of less than 1 percentage point.

Because Democrats have asked for three times the number of mail ballots this year as Republicans, any rejection of late-arriving ballots would likely hurt Joe Biden more than Trump.

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Voters in the state can request mail ballots as late as seven days before the election, and they must be delivered to them within two days after the requests are received, leaving only a short time for the completed ballots to be delivered.

Democrats said the crush of voting by mail, along with a warning from the U.S. Postal Service that delivery might be slowed, required extending the normal deadline, which state law sets as 8 p.m. on Election Day.

The Pennsylvania Supreme Court agreed, ruling in September that the free and equal clause of the state Constitution required an accommodation in light of mail delays caused by the coronavirus pandemic. It determined that voters would be disenfranchised if their ballots were stuck in mail sorting facilities because of expected Postal Service delays.

Under the ruling, ballots can arrive as late as three days after the polls close, unless there's evidence that a ballot was mailed after Election Day. State election officials began following the ruling immediately, telling Pennsylvania voters that their ballots would be accepted if they are received by Nov. 6, provided they are mailed on or before Election Day.

"Untold numbers of citizens have relied on that guidance," the Democrats told the Supreme Court on Monday.

Changing the rules now, so close to the election, "would severely and irreparably disrupt Pennsylvania's elections," they said. There's no reason, they said, to give the Republican Party another chance to make the same arguments on which it lost before.

But the Republican Party said the state Supreme Court ruling usurped the Legislature's authority to set election rules. Accepting late ballots could encourage some people to cast their votes after the polls close — even a day after, which they said would violate federal laws requiring that Election Day must be the same in all states.

At the very least, they said, the court should order the state to keep ballots that arrive after Election Day separated from the others so that if the Republicans eventually do prevail, those votes won't be counted. Earlier Wednesday, state election officials ordered that the later-arriving mail ballots must be kept separate while the legal issues are still in play.

Pennsylvania's attorney general, Josh Shapiro, celebrated the ruling.

"We applaud the court's decision to slow down, get to regular order, and let Pennsylvania have an election," he said. "Now we must vote and take time to count all eligible ballots.