Los Angeles Times

Justices reject election appeal

Supreme Court refuses to hear GOP suit over mail ballots.

- BY DAVID G. SAVAGE

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.

 ?? MARK WILSON Getty Images ?? THE SUPREME COURT denied an appeal by Pennsylvan­ia Republican­s challengin­g state court rulings that allowed mail ballots received up to three days after election day to be counted. Three justices dissented.
MARK WILSON Getty Images THE SUPREME COURT denied an appeal by Pennsylvan­ia Republican­s challengin­g state court rulings that allowed mail ballots received up to three days after election day to be counted. Three justices dissented.
 ?? EDWIN J. TORRES Associated Press ?? GOV. PHIL MURPHY signed the legislatio­n Monday, months after voters approved a ballot measure.
EDWIN J. TORRES Associated Press GOV. PHIL MURPHY signed the legislatio­n Monday, months after voters approved a ballot measure.

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