The Supreme Court ruled this week for a second time that Pennsylvania mail ballots received by Friday, November 6th—three days after Election Day—can be counted, affirming the Wolf administration’s position on the extended ballot deadline. Hopefully, this will lay to rest the last remaining lawsuit that was still in play heading into Election Day next Tuesday.
But like a horror movie monster thought to be defeated at the end of the film, there’s still a chance it could come roaring back to life in the last 10 minutes.
This is the second time the Court ruled in favor of the 3-day window, but there are still some reasons for concern that it’s not a done deal. The first sign of trouble was that that last ruling came while the Supreme Court still had a vacancy after Ruth Bader Ginsburg’s passing, and all of the conservative Justices voted to overturn the PA Supreme Court’s ruling in favor of the 3-day window—considered by many lawyers and Court watchers to be a pretty radical and nakedly partisan move.
This week, the Court upheld the 3-day window again, with newly-appointed justice Amy Coney Barrett recusing herself from voting. Disturbingly, some justices want to leave the door open to revisiting this after the election, setting the stage for another Bush v. Gore type of decision. As Geoffrey Skelley at FiveThirtyEight writes,
Even if Trump doesn’t question the result, Pennsylvania’s blue shift could be affected by post-election court rulings in the state. Take the fight over whether to count ballots that were postmarked by Election Day and received by Nov. 6. The U.S. Supreme Court has twice now upheld the state’s Supreme Court ruling that extended the deadline, but it’s not clear whether the court has entirely ruled out revisiting the issue. Justice Samuel Alito, joined by two of the court’s other conservative justices, wrote that while there was a “strong likelihood” that the state’s Supreme Court decision violated the U.S. Constitution, there simply wasn’t time to decide before the election.
However, ballots arriving after 8 p.m. Eastern on Election Day will be separated out, so the issue can be revisited if necessary after the election. And if the Supreme Court does take up the case again after the election, deciding to not count these ballots could reduce the size of the vote shift in Biden’s favor because more Democratic votes would likely be affected, given the partisan split in mail voting. For his part, Trump said on Wednesday that he hoped the courts would stop states from counting ballots beyond Election Day.
Jonathan Lai at the Inquirer explains why it’s still pretty unlikely that anybody could actually stop the vote counting after Election Day for votes cast legitimately under the known and agreed-upon rules, which now include a 3-day grace period that’s twice been affirmed by the Court. Still, the best advice for voters remains the same: drop your mail ballot off, as soon as possible, at a dropbox or satellite election office. Don’t wait!
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