U.S. Supreme Court

Supreme Court doesn't interfere with ballot deadline extensions in 2 states; Barrett doesn’t participate

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Extended deadlines for mail-in ballots in Pennsylvania and North Carolina remain undisturbed as a result of actions by the U.S. Supreme Court on Wednesday.

The Supreme Court denied expedited review of a cert petition in the Pennsylvania case and refused to issue an injunction in the North Carolina case. The actions were a victory for Democrats.

Justice Amy Coney Barrett did not participate in either action, report SCOTUSblog (here and here), the New York Times and the Washington Post. Through a court spokeswoman, Barrett said she didn’t participate because she didn’t have time to review the legal arguments, according to the articles.

Last week, the Supreme Court had split 4-4 when the GOP sought a stay in the Pennsylvania case, which left in place a Pennsylvania Supreme Court ruling that allowed officials to count ballots cast by Election Day and received within three days afterward.

Roberts apparently joined with the liberals justices in the Pennsylvania case. Roberts explained his reasoning in another case Monday in which Roberts joined with conservative justices in refusing to reinstate a federal judge’s extended deadline to count absentee ballots in Wisconsin. The Pennsylvania case involved a state supreme court applying the state constitution to election regulations, Roberts said. Different law applies when a federal judge enjoins state election laws, he said.

Three justices—Samuel A. Alito Jr., Clarence Thomas and Neil M. Gorsuch—indicated in a statement written by Alito on Wednesday that they had constitutional concerns when state courts override election rules set by state lawmakers.

Justice Brett M. Kavanaugh did not join the statement, but he wrote a concurrence Monday in the Wisconsin case that is getting a lot of attention because he cited Bush v. Gore. The 2000 Supreme Court decision ended the recount of ballots in Florida and paved the way for George W. Bush to become president.

Kavanaugh said in footnote 1 of the concurrence that a federal court’s alteration of state elections laws differs in some respects from a state court’s changes, but under the U.S. Constitution “state courts do not have a blank check to rewrite state election laws for federal elections.” A state court may not depart from the election code enacted by the legislature, he said, citing Bush v. Gore.

In his statement Wednesday in the Pennsylvania case, Alito said it would be “highly desirable” to rule in the Pennsylvania case before the election, but he “reluctantly” concluded that there isn’t enough time.

Alito said the issue in the Pennsylvania case “has national importance, and there is a strong likelihood that the state supreme court decision violates the federal Constitution. The provisions of the federal Constitution conferring on state legislatures, not state courts, the authority to make rules governing federal elections would be meaningless if a state court could override the rules adopted by the legislature simply by claiming that a state constitutional provision gave the courts the authority to make whatever rules it thought appropriate for the conduct of a fair election.”

Alito also said the court’s denial of the request for expedited review “is not a denial of a request for this court to order that ballots received after election day be segregated, so that if the state supreme court’s decision is ultimately overturned, a targeted remedy will be available.”

In the North Carolina case, Alito, Thomas and Gorsuch indicated that they would have granted an injunction blocking a six-day extension of the Nov. 6 deadline for receiving absentee ballots. The state board of elections had granted the extension, which allows absentee ballots to be received up to Nov. 12.

Gorsuch wrote a dissent in the North Carolina case, joined by Alito. Efforts like that of the state elections board “not only offend the elections clause’s textual commitment of responsibility for election lawmaking to state and federal legislators, they do damage to faith in the written Constitution as law, to the power of the people to oversee their own government, and to the authority of legislatures,” he wrote.

The Pennsylvania case is Republican Party of Pennsylvania v. Boockvar. The North Carolina case is Moore v. Circosta.

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