By The Washington Post · Robert Barnes · NATIONAL, POLITICS, COURTSLAW
They declined to disturb decisions that allow Pennsylvania officials to receive ballots cast by Election Day and received within three days, while the grace period set by the elections board in North Carolina is nine days.
In both of the cases, the Republican Party and GOP legislators had opposed the extensions, and President Donald Trump has railed on the campaign trail about the mail-in vote.
Three conservative justices - Clarence Thomas, Samuel Alito Jr. and Neil Gorsuch - objected in both cases.
New Justice Amy Coney Barrett did not to participate in either case. Her decision did not signal a blanket recusal in election cases involving Trump, who nominated her, as Democratic senators sought for her to pledge during the confirmation process. Instead, Barrett indicated through a court spokeswoman that the cases needed prompt decisions andthat, having started work Tuesday, she did not have time to fully review the legal arguments.
The court in the past few days has confronted deadline extensions for mail-in ballots in three states. It did not allow one in Wisconsin championed by Democrats. The seemingly contradictory decisions appeared based on a difference noted by Chief Justice John Roberts Jr.: that the court should be reluctant to approve changes imposed by federal judges, as in Wisconsin, but view those imposed by state courts or agencies differently, as was the case in Pennsylvania and North Carolina.
Moreover, the issue in Pennsylvania, a state that proved vital to Trump's election four years ago and is key to his reelection, might not be settled.
Thomas, Alito and Gorsuch signaled that they might want to revisit the case after the election, and even indicated the votes received after Election Day ultimately might not be counted.
The three penned a statement criticizing the ruling by the Pennsylvania Supreme Court that called for three extra days to receive mail-in ballots because of the crush of requests brought on by fears of the coronavirus pandemic, writing that it was probably unconstitutional.
"There is a strong likelihood that the State Supreme Court decision violates the Federal Constitution," wrote Alito.
"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."
The Pennsylvania Supreme Court decision to grant the extra time was based on a "Free and Equal Elections Clause" in the commonwealth's constitution.
According to the majority, that provision requires elections to be "conducted in a manner which guarantees, to the greatest degree possible, a voter's right to equal participation in the electoral process," and affords courts "broad authority to craft meaningful remedies when required."
The justices who voted not to accept the Republican request did not explain their reasoning, although the court said additional statements may be forthcoming.
Justice Brett Kavanaugh, who earlier this month had voted with the other three conservatives to grant a Republican request to stop the deadline extension in Pennsylvania, did not join Alito's statement.
On Oct. 19, the Supreme Court's 4 to 4 vote left the Pennsylvania court's ruling in place. But Republicans renewed their request when it became clear that Barrett, Trump's third appointee to the court, would be confirmed in time to make a last-ditch pitch.
Trump on Wednesday said at a news conference that he was depending on courts to keep states from counting ballots received after Election Day, even those clearly postmarked before then.
"Hopefully the few states remaining that want to take a lot of time after November 3rd to count ballots, that won't be allowed by the various courts," the president said.
The president apparently was referring to ballots received after Nov. 3, because states always are counting votes after Election Day, and do not certify the outcome for weeks.
Alito said there was not enough time to review the Pennsylvania court's decision before the election.
But he noted that the denial of the motion to take it up now "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."
With that in mind, Pennsylvania Attorney General Josh Shapiro, a Democrat, said in a statement the fight might not be over, and urged voters not to depend on the mail.
"The Commonwealth has taken careful steps to ensure all eligible Pennsylvania votes will be counted and to stave off further anticipated legal challenges," he said. "We call on all voters to submit their mail-in ballots to a drop box or county election office as soon as possible."
In the North Carolina case, a divided federal appeals court had upheld a decision of the North Carolina elections board to extend the deadline for receipt of mail-in votes postmarked by Election Day, calling the measure a "common sense change" at a time when the U.S. Postal Service is inundated with ballots.
In a 12-to-3 ruling, the U.S. Court of Appeals for the 4th Circuit rejected Republican efforts to block the extension, which would allow counting ballots received up to nine days after the election.
The dispute divided North Carolina's government, where Republicans control the legislature but the governor and attorney general are Democrats.
Attorney General Joshua Stein defended the elections board, saying it was doing exactly what the legislature has empowered it to do.
"The board - a bipartisan body whose members are appointed by the governor from lists submitted by the two major political parties - unanimously concluded that the challenged measures were appropriate in light of the COVID 19 pandemic emergency and the resulting mail delays," Stein's brief to the Supreme Court said, referring to the disease caused by the novel coronavirus.
"In recent elections, the state board has frequently exercised its authority to extend statutory deadlines and make other adjustments to deal with exigent circumstances."
For instance, in the past three years alone, the board has twice extended the absentee-ballot receipt deadline after hurricanes hit the state. "No one challenged those extensions," Stein said.
In July, the Postal Service warned North Carolina that it might not be able to meet the state's standards for return of absentee ballots, Stein said.
But Republican legislative leaders tried to block the extension in state and federal court. A district judge rejected their request for an injunction because of concerns about changing voting rules so close to an election. The lawmakers, joined by national Republican committees and the president, then asked the appeals court to intervene.
At the Supreme Court, House Speaker Timothy Moore and Senate President Philip Berger said that the extension could raise "the specter of a post-election dispute over the validity of ballots received during the disputed period in North Carolina."
They said the actions of the bipartisan election board was an "an unprecedented effort to usurp the North Carolina General Assembly's prerogative to regulate federal elections in North Carolina."
Gorsuch agreed, in a dissent joined by Thomas and Alito.
"Last-minute changes by largely unaccountable bodies . . . invite confusion, risk altering election outcomes, and in the process threaten voter confidence in the results," he wrote.
He noted that the court had turned down the extension in Wisconsin and said, "in some respects, this case may be even more egregious."
As in the Pennsylvania case, he said the court owed deference to the legislature, which he said saw its work earlier in the summer undone by the elections board and state judges, who he said "worked together to override a carefully tailored legislative response to COVID."
The Pennsylvania cases are Scarnati v. Boockvar and Republican Party v.Boockvar. The North Carolina cases are Moore v. Circosta and Wise v. Circosta.