SCOTUSblog by Tom Goldstein 11/7/2020
The Pennsylvania Supreme Court has ruled that mail-in ballots received within three days of Election Day will be counted and presumed to have been timely mailed. That ruling interprets the state constitution to invalidate a state statute that requires mail-in ballots to be received by Election Day.
Pennsylvania Republicans argue to the contrary that the legislative deadline is controlling because the U.S. Constitution gives state legislatures the authority to determine how to count votes for president — unconstrained by the state constitution.
So far, the U.S. Supreme Court has declined to get involved. It denied Pennsylvania Republicans’ applications (1) for a stay of the state court ruling (by a 4-4 vote, before Justice Amy Coney Barrett was confirmed), and (2) to expedite their petition for certiorari (with newly confirmed Barrett not participating because she did not have time to consider the application).
On Friday, Pennsylvania Republicans essentially renewed their stay request, in a slightly different form. They sought an injunction requiring the county canvassing boards to (1) segregate the late-arriving ballots, and (2) not count them.
The Republicans’ injunction request explains that 25 canvassing boards might not be segregating the ballots. The Pennsylvania secretary of state has issued “guidance†that they should, and a majority of the boards have said that they will follow that guidance. No board has indicated that it will not comply. But the Republicans represent in their application that 25 of the boards haven’t said one way or the other.
Justice Samuel Alito, who handles emergency applications from the geographic area that includes Pennsylvania, issued essentially an administrative order granting the former — not the latter — until the full court could decide the request. Alito directed that responses to the application be filed Saturday afternoon.
More:
https://www.scotusblog.com/2020/11/the-dilemma-of-the-pennsylvania-injunction-request/
