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High court deadlocks over late vote counts; shows how Barrett may swing future decisions
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High court deadlocks over late vote counts; shows how Barrett may swing future decisions

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The Supreme Court will allow Pennsylvania to count ballots received up to three days after the election, rejecting a Republican plea.

The justices divided 4-4 Monday, an outcome that upholds a state Supreme Court ruling that allowed election officials to receive and count ballots until Nov. 6, even if they don't have a clear postmark.

Republicans, including President Donald Trump's campaign, have opposed such an extension, arguing that it violates federal law that sets Election Day as the first Tuesday after the first Monday in November and that such a decision constitutionally belongs to lawmakers, not the courts.

Chief Justice John Roberts joined with the three liberal justices to reject Pennsylvania Republicans' call for the court to block the state court ruling.

The highly anticipated order could set the tone for other pre-election challenges and highlights the fact that once again Roberts has moved left to side with his liberal colleagues in an area where he has a very conservative record. It also comes just two weeks before Election Day and intensifies the Supreme Court confirmation battle over Judge Amy Coney Barrett, who could well prove to be a deciding vote on election night challenges.

The Senate Judiciary Committee is set to vote Thursday to advance Barrett's nomination, with a full Senate vote expected early next week. That could diminish Roberts' influence on the court if Barrett sides with the other four conservative justices: Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh.

"Once again, Chief Justice Roberts played the same role he's played over the last year -- appearing to put what he views as the court's institutional interests ahead of what he otherwise might've preferred," said Steve Vladeck, a CNN legal analyst and professor at the University of Texas School of Law. "But with the confirmation of Judge Barrett seemingly a fait accompli, this may be one of the last times that such a move by him is decisive."

The case in the battleground state has been of keen interest to voting rights experts who wanted to see how the Supreme Court might put limits on what state courts can do during the coronavirus pandemic to protect the right to vote. The justices have already signaled to federal courts that they should not step in to change rules too close to an election.

Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Clarence Thomas would have required the state to stop accepting absentee ballots when the polls close on Nov. 3.

There were no opinions accompanying the order, so it is impossible to say what motivated either group of justices.

The conservative justices have been reluctant to allow court-ordered changes to voting rules close to an election.

. But in that case, the ruling being challenged comes from a federal appeals court and it's the Democrats who are asking the justices to step in.

In Pennsylvania, the state Democratic Party and its allies had sought an extension of the Election Day deadline to count mailed ballots because Democratic-registered voters are requesting mail ballots at a nearly 3-to-1 ratio over Republicans.

In its Sept. 17 ruling, the divided state Supreme Court said ballots must be postmarked by the time polls close and be received by county election boards at 5 p.m. on Nov. 6, three days after the Nov. 3 election. It also said that ballots lacking a clear postmark could be counted unless there was evidence that they were mailed after the polls closed.


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