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Supreme Court Tie Allows 3-Day Extension for Pennsylvania Ballots

Workers prepare ballots from a drop box for the mail sorting machine during the presidential primary at King County Elections ballot processing center in Renton, Wash., March 10, 2020. (Lindsey Wasson/Reuters)

The Supreme Court on Monday refused a Republican request to block an extended period for counting ballots in Pennsylvania, allowing mail-in ballots received up to three days after Election Day to be counted. 

A 4-4 tie in the Court — Chief Justice John Roberts sided with the Court’s three liberal justices — means the state court ruling favoring Democrats is affirmed and upheld.

While Justices Thomas, Alito, Gorsuch and Kavanaugh sided with the state GOP, saying they would have granted the stay, the lower court ruling favoring Democrats prevailed under the procedures for breaking a tie in the Court. The bench is down one justice after the death of Justice Ruth Bader Ginsburg last month. That seat is expected to be filled by President Trump’s nominee Amy Coney Barrett next week.

The Court had considered the GOP’s request for almost two weeks. Neither side explained its reasoning, as is common with emergency requests.

The voting rule became the subject of an intense battle between the parties in Pennsylvania, an important battleground state in the presidential election. In 2016, Trump beat Hillary Clinton in the state by 44,000 votes, or less than one percentage point.

The Pennsylvania Supreme Court ruled on a number of mail-voting rules last month, which included the three-day mail-in voting extension as well as allowing voters to turn in ballots via dropbox and blocking a GOP-led effort to allow partisan poll watchers to be placed in counties where they do not live.

Pennsylvania Republicans pushed back only on the ruling extending the deadline for mail ballots to arrive. The state court had ruled that mail ballots must be counted as long as they are postmarked by Election Day. In the event that no postmark is visible, ballots must be counted “unless a preponderance of the evidence” shows that the ballots were mailed after November 3.

The stay request filed by Republican leaders claimed the new rules would shake voter confidence in the electoral system and essentially amounted to extending Election Day.

“In a year where there is a very real possibility that the final presidential election result hinges on Pennsylvania, the new rules imposed by the decision of the Supreme Court of Pennsylvania (a body elected in partisan elections) could destroy the American public’s confidence in the electoral system as a whole,” it read.

The state’s Democratic attorney general, Josh Shapiro, said the state court’s decision was based on a clause in the Pennsylvania constitution mandating that “all aspects of the electoral process in Pennsylvania be open and unrestricted so as not to disenfranchise Pennsylvania voters.”

“The Pennsylvania Supreme Court’s decision protected that right and brought much needed clarity to the exigent circumstances surrounding a global pandemic,” Shapiro wrote. “In doing so, that court ensured that Pennsylvanians would not be forced to choose between exercising their right to vote and protecting their health.”

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