Supreme Court readies for possible post-election cases
WASHINGTON — The Supreme Court has all but run out of time to deal with more legal fights ahead of Election Day on Tuesday, but its down-to-the-wire decisions from Pennsylvania and North Carolina foreshadow what issues could land at the high court after Nov. 3.
The justices declined Wednesday night to decide prior to the election whether Pennsylvania can tally mail-in ballots that arrive up to three days after Election Day amid concerns that mail delivery has slowed — but that doesn’t mean the case is over.
“I reluctantly conclude that there is simply not enough time at this late date to decide the question before the election,” Justice Samuel A. Alito Jr. wrote in a statement that went out along with the order. “That does not mean, however, that the state court decision must escape our review.”
The Supreme Court can still agree to hear the appeal from Republicans, who are challenging a Pennsylvania Supreme Court decision that allows those ballots to be counted, Alito wrote, with Justices Clarence Thomas and Neil M. Gorsuch joining that statement.
And the justices could still “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,” Alito wrote.
Democratic state officials wrote the Supreme Court on Wednesday to say that they already issued guidance to county boards of election to keep those late-arriving ballots segregated.
The Supreme Court press office noted that Justice Amy Coney Barrett, who was confirmed Monday, did not participate in that decision and others Wednesday because they needed to be made promptly and she has not had time to fully review the filings in the case.
The Supreme Court, in an earlier action on that same case, deadlocked 4-4 on a request from Republicans to overturn the state supreme court ruling ahead of the election without making a full decision on the merits of the case.
The question about whether election officials can change rules to allow the counting of ballots received after Nov. 3 highlights how courts have grappled with the way states are dealing with an election with the highly contagious novel coronavirus.
The case could become a big deal in an extremely close election, but could fizzle in a blowout where the tally of the late ballots wouldn’t change the outcome.