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.
“Hopefully the election will not be close enough in either PA or the electoral college and the issue becomes moot in this election,” election law expert Rick Hasen, a professor at the University of California, Irvine School of Law, wrote on his blog.
Whenever the Supreme Court makes a decision about whether to decide the Republicans' more full appeal, Barrett could choose to participate and might be in a role to cast a deciding vote.
Even later Wednesday night, the Supreme Court declined to undo a North Carolina elections board decision to count ballots that arrive up to nine days late, even though the state legislature had set that at three days late because of the pandemic.
Gorsuch, Thomas and Alito noted they would have approved the request from Republicans in North Carolina to halt that board decision.
And in a separate decision on a separate request on the same issue from North Carolina state Republican lawmakers, Gorsuch wrote a dissent to explain that he believed the state elections board had overreached its authority.
“Such last-minute changes by largely unaccountable bodies, too, invite confusion, risk altering election outcomes, and in the process threaten voter confidence in the results,” Gorsuch said.