Justices reject election appeal
Supreme Court refuses to hear GOP suit over mail ballots.
WASHINGTON — The Supreme Court dealt a postelection defeat Monday to Republican officials in Pennsylvania by refusing to hear their appeal of state court rulings that allowed for the counting of mail ballots that were sent by election day but arrived up to three days later.
Three conservative justices dissented, arguing the court should clarify the law before the next election.
Pennsylvania’s attorney general had urged the court to turn down the appeal because the election was over and the case was moot.
At issue, however, was a potentially important question for the 2024 election about whether state legislatures or the state supreme courts have the final word on a state’s election rules.
Lawyers for Pennsylvania Republicans urged the court to rule that the Constitution gave only state legislatures the final word on the election rules. They pointed to a provision in a 2019 law that said mail ballots must arrive by election day.
Because of the pandemic, however, the Pennsylvania secretary of state recommended changes in the deadlines for counting mail ballots. As the U.S. Postal Service warned of delays, she said the state should count ballots that were in the mail by election day, but arrived up to three days later. The Pennsylvania Supreme Court agreed and adopted this rule for the 2020 election.
For a time in the fall, this dispute loomed large, particularly if the outcome of the presidential race turned on a very close vote in Pennsylvania. But President Biden won the state by more than 81,000 votes, and his margin was unaffected by the fewer than 10,000 late-arriving ballots, which were counted separately.
Justice Clarence Thomas said Monday the court should have agreed to hear and decide the Pennsylvania case in the year ahead. The state’s decision to extend the deadline for three days “seems to have affected too few ballots to change the outcome of any federal election. But that may not be the case in the future,” he wrote. “These cases provide us with an ideal opportunity to address just what authority non-legislative officials have to set election rules, and to do so well before the next election cycle.”
Justices Samuel A. Alito Jr. and Neil M. Gorsuch filed a short separate dissent.
The court’s action leaves unresolved one of the legal disputes that is likely to reappear in states where there is a partisan divide between the legislature and the governor.
The Pennsylvania dispute arose after the state legislature, in a bipartisan move, joined other states in 2019 and passed a measure that allowed all of the state’s eligible voters to cast their ballots by mail. The law said the ballots must arrive by election day.
But in late summer as millions of voters opted for a mail ballot to avoid exposure to the coronavirus, Pennsylvania’s Secretary of State Kathy Boockvar recommended relaxing the rule for counting late-arriving ballots. The Pennsylvania Supreme Court agreed and ruled that ballots that were put in the mail by election day could be counted if they arrived by Nov. 6.
Republican lawyers urged the U.S. Supreme Court to intervene and reverse that ruling, but their appeal was denied Oct. 28 based on a tie vote. Newly confirmed Justice Amy Coney Barrett recused herself, and the other eight justices split 4 to 4.
Alito, Thomas and Gorsuch filed a dissent saying the court should have intervened. There “is a strong likelihood that the state Supreme Court’s decision violates the federal constitution,” they wrote.
In December, after Biden’s victory had been ratified, Republican attorneys urged the high court to take up the Pennsylvania case and resolve the underlying legal dispute.
Their argument rests on a provision in Article II of the Constitution that says, “Each state shall appoint in such manner as the legislature may direct” a slate of electors who will cast votes for the president and vice president.
They pointed to the 2000 Bush vs. Gore decision when Chief Justice William H. Rehnquist said in a concurring opinion that in presidential elections, the election laws passed by the state legislature should control the outcome, not the interpretations handed down by the state courts.
TRENTON, N.J. — A recreational marijuana marketplace, cannabis decriminalization and looser penalties for underage possession became law Monday in New Jersey, more than three months after voters overwhelmingly approved a ballot question to legalize adult use of the drug.
Acknowledging that the legislation took much longer to be enacted than expected, Democratic Gov. Phil Murphy cast aside critics’ attacks that the move is about filling state coffers with tax revenue or easing penalties on underage possession to the point of making policing difficult.
“The reason I signed these bills, the reason why we’ve been in this fight, is for social justice,” Murphy said Monday during a news conference.
He alluded to decades of stringent policing of marijuana laws — the “war on drugs” that had disproportionate consequences for Black residents.
“At long last, we’ve broken through, and as of today, better days are here, and lives that have been nicked or in some cases ruined, we’ll be able to correct,” Murphy said. “At long last and from this moment going forward, we won’t have to see that same chapter written again in our state’s history.”
Murphy signed the legislation just in time: He faced a Monday deadline to enact two of three of the bills; he signed the third shortly after it was sent to him by the Democrat-led Legislature.
Still, it could be six months before the legalized marketplace is up and running, Murphy and industry analysts estimated. That’s because the state’s new Cannabis Regulatory Commission has to put in place regulations and licenses.
The number of licenses for cultivators will be set at 37 for two years. The state Senate was pushing for no limit on licenses, but the Assembly wanted them capped.
Legislation that passed Monday after weeks of negotiation makes underage possession of marijuana and alcohol subject to written warnings that escalate to include parental notification and a referral to community services upon subsequent violations.
Underage drinking had been punishable by a fine of up to $1,000 and up to six months in jail.
Towns will no longer have the authority to enact ordinances with civil penalties or fines concerning underage possession or consumption on private property. The legislation also increases the liability for suppliers of cannabis items to underage people by making a third or subsequent violation a petty disorderly persons offense.
Some Republicans were aghast at the reduction in penalties.
“There’s no consequence,” GOP state Sen. Bob Singer said. “We’re now saying if you’re caught with it underage, it’s a free pass.”
Murphy responded Monday that marijuana should be treated with “responsibility.” “The words ‘adult use’ have been associated with this from Day One,” he said.
State Police Supt. Col. Patrick J. Callahan said the attorney general and his office were coming up with guidelines for officials across the state on how to enforce the new laws.
As part of the legislation, the Cannabis Regulatory Commission will be able to levy an excise tax, dependent on the cost per ounce of cannabis.
For consumers, the legal marketplace will be subject to the state’s 6.625% sales tax; 70% of proceeds will go to areas that have been disproportionately affected by marijuana-related arrests.
Black residents have been up to three times likelier to face marijuana charges than white residents.
The decriminalization measure was necessary because state laws make possession a crime, despite the voter-approved amendment, according to lawmakers. The measure passed with broad bipartisan support.