WASHINGTON — In a pair of decisions welcomed by Democrats, the Supreme Court on Wednesday at least temporarily let election officials in two key battleground states, Pennsylvania and North Carolina, accept absentee ballots for several days after Election Day.
In the Pennsylvania case, the court refused a plea from Pennsylvania Republicans that it decide before Election Day whether the state can continue counting absentee ballots for three days after Nov. 3.
In the North Carolina case, the Supreme Court let stand a lower court ruling that allowed the state’s board of elections to extend the deadline to nine days after Election Day, up from the three days called for by state legislators.
The court’s brief orders in the two cases were unsigned and gave no reasons.
Justice Amy Coney Barrett, who joined the court on Tuesday, did not take part in either case. A court spokeswoman said Justice Barrett said she had not participated “because of the need for a prompt resolution of it and because she has not had time to fully review the parties’ filings.”
In the Pennsylvania case, Justice Samuel A. Alito Jr., joined by Justices Clarence Thomas and Neil M. Gorsuch, said the court may still consider the case after Election Day.
“I reluctantly conclude that there is simply not enough time at this late date to decide the question before the election,” Justice Alito wrote.
“Although the court denies the motion to expedite” the petition seeking review, he wrote, the petition “remains before us, and if it is granted, the case can then be decided under a shortened schedule.”
In an unusual notation, the court’s order said that “additional opinions may follow.”
The court’s refusal to move more quickly in the Pennsylvania case came a little more than a week after it deadlocked, 4 to 4, on an emergency application in the same case. The Pennsylvania Republican Party had asked the justices to temporarily block a ruling from the state’s highest court that allowed election officials to count some mailed ballots received up to three days after Election Day.
The state court said the extra time was needed because of the coronavirus pandemic and delays in mail service.
State Republicans, apparently hoping that the arrival of Justice Barrett would alter the judicial calculus, returned to the Supreme Court on Friday asking it to hear an ordinary appeal from the state court’s ruling, which is not unusual, but to compress a process that usually takes months into a few days, which certainly is.
In his statement, Justice Alito criticized his court’s treatment of the case, which he said had “needlessly created conditions that could lead to serious postelection problems.”
“The Supreme Court of Pennsylvania has issued a decree that squarely alters an important statutory provision enacted by the Pennsylvania legislature pursuant to its authority under the Constitution of the United States to make rules governing the conduct of elections for federal office,” he wrote.
That echoed a concurring opinion issued on Monday by Justice Brett M. Kavanaugh in a case from Wisconsin. Justice Kavanaugh also said that state legislatures, rather than state courts, have the last word in setting state election procedures.
Writing on Wednesday, Justice Alito said he regretted that the election would be “conducted under a cloud.”
“It would be highly desirable to issue a ruling on the constitutionality of the State Supreme Court’s decision before the election,” he wrote. “That question 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,” he wrote, “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.”
Earlier on Wednesday, Pennsylvania officials told the court that they had instructed county election officials to segregate ballots arriving after 8 p.m. on Election Day through 5 p.m. three days later. That could potentially allow a later ruling from the court to determine whether they were ultimately counted.
In its motion seeking expedited consideration of the case, lawyers for the Republican Party wrote that the court’s ordinary briefing schedules “would not allow the case to be considered and decided before the results of the general election must be finalized.”
“Once candidates have taken office,” the motion said, “it will be impossible to repair election results tainted by illegally and belatedly cast or mailed ballots.”
The motion noted that four justices had already indicated where they stood when the court deadlocked on Oct. 19. Justices Thomas, Alito, Gorsuch and Kavanaugh said they would have granted a stay blocking the Pennsylvania Supreme Court’s decision. On the other side were Chief Justice John G. Roberts Jr. and the court’s three-member liberal wing: Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.
Neither side gave reasons, and the split suggested that Justice Barrett could play a decisive role if the court eventually heard the case.
Responding to the motion seeking expedited treatment of the Republicans’ appeal, the Pennsylvania Democratic Party called the request “rash and unseemly.”
“Even on the extraordinarily hurried schedule” proposed by the Republicans, the response said, “a ruling from this court could not realistically issue until the eve of the election.”
“By then,” it added, “it will be too late for many Pennsylvania voters who have relied on the existing rules to adjust to any change in the rules that this court might impose.”
The questions the court would have to address in mere days, the response said, are serious and complex, including the role that state courts may play in regulating federal elections.
“It is unthinkable that such weighty issues would be fully briefed and conclusively decided in just a few days — while at the same time subjecting the voters of Pennsylvania to severely unfair treatment and imposing new and significant burdens on the election officials who are charged with conducting this election,” the response said.
The Pennsylvania Supreme Court ordered a three-day extension for ballots clearly mailed on or before Election Day and for those with missing or illegible postmarks “unless a preponderance of the evidence demonstrates that it was mailed after Election Day.”
The U.S. Supreme Court has not hesitated to block orders from federal judges that sought to alter state rules for conducting elections. Rulings from state courts present more difficult questions, as the Supreme Court generally defers to them in cases concerning interpretations of state law and the Constitution empowers state legislatures to set the times, places and manner of congressional elections.
In an earlier brief, Republicans argued that “the Constitution reserves a special role for state legislatures in federal elections,” one that cannot be overridden by state courts. The brief relied heavily on the Supreme Court’s decision in the cases culminating in Bush v. Gore, the 2000 ruling that handed the presidency to George W. Bush.
“By extending the deadline by judicial fiat and establishing a presumption of timeliness that will allow voters to cast or mail ballots after Election Day,” the brief said, “the Pennsylvania Supreme Court has impermissibly altered both the ‘time’ and ‘manner’ established by the General Assembly” for conducting elections.
In response, Josh Shapiro, Pennsylvania’s attorney general, a Democrat, said a provision of the State Constitution protecting “free and equal elections” allowed the Pennsylvania Supreme Court to extend the deadline.