The Battles Over Counting Votes That Will Likely End up in Supreme Court in the Next Two Weeks

AP Photo/Patrick Semansky

Where to start?

There are two principle questions that will eventually make their way to the Supreme Court at a dramatically accelerated pace.  Can state courts change state election law when a state legislature has refused to do so?  Second, can state agencies change election law to settle a lawsuit when the state legislature has just passed the new election law that is under assault?

First, there is a fully-briefed case pending concerning the changes to Pennsylvania election law as imposed by a decision from the Philadephia Supreme Court.  That decision came out of state court proceedings where existing Pennsylvania election law was challenged as violating the Pennsylvania Constitution’s guarantee of free and fair elections.

The lawsuit was filed after a stalemate developed between the Democrat Governor Tom Wolf, and the GOP controlled Pennsylvania legislature over changes Gov. Wolf wanted to be made to the state’s election laws to deal with vote-by-mail alternatives which had been widely expanded by the Legislature in response to the COVID pandemic.  Among the changes he sought, but the GOP legislature refused to pass, was an extension of the date upon which the mailed-in ballots could be received and still deemed validly cast under state law.  The Pennsylvania statute has always provided that mailed-in ballots must be in the possession of election officials by 8:00 pm on election day.  Due to fear that the US Postal Service would not be able to timely deliver all mail-in ballots case on or before election day by the 8:00 pm deadline on election day, Wolf had sought an extension from the Legislature allowing for the receipt of such “late” ballots for a period of three additional days.

The Pennsylvania statute provides that any mail-in ballots which arrive after the 8:00 pm election day deadline are to be stamped as “Late”, and the ballots set aside and not delivered to the election board for tabulation.

The Pennsylvania Supreme Court had the final say in the state court proceedings, and in a 4-3 decision ruled that the 8:00 pm election day “received by” deadline violated federal and state constitutional guarantees to “free and fair” elections by unduly burdening the right to vote.  The Court ordered that ballots received within three days of the statutory deadline be received and included in the final vote tabulation so long as they are postmarked on or before November 3, 2020.  Ballots received within the three day period without a postmark are to be presumed to have been mailed on or before election day.

GOP interest groups appealed the decision to the US Supreme Court.  Following the passing of Justice Ginsburg, the Court ultimately declined to grant an emergency stay of the Pennsylvania Supreme Court’s ruling by a 4-4 vote.  That decision was not a judgment on the merits of the claims made against the Pennsylvania Supreme Court’s decision, it simply meant that the US Supreme Court would not rule on the case until after the election, and would not block the decision from the Pennsylvania Supreme Court from taking effect.  But all signs seem to suggest that there are 4 votes to reverse the decision of the Pennsylvania Supreme Court’s three-day extension, and declare any mail-in ballots received after 8:00 pm on election night — 3 hours from now — to be not validly cast.

The outcome of the case likely comes down to the vote of Justice Barrett.

A second case likely to be part of the same decision — to be decided on different grounds but involving a similar issue — is now pending in the Court of Appeals for the Fourth Circuit.  In that case, a federal district court judge allowed to stand a decision by the North Carolina Board of Elections to extend the “received by” date under North Carolina law to 9 days after Election day.  The Board of Elections voted in favor of the extension to settle a lawsuit brought in state court challenging North Carolina election law due to COVID. Noteworthy is the fact that the statutes being challenged had just been amended by the North Carolina General Assembly to deal with COVID problems, and the General Assembly specifically declined to extend North Carolina’s “received by” deadline which was three-days after election day.

After the Board of Election agreed to do what the General Assembly had refused to do, the Speaker of the North Carolina House, and Leader of the North Carolina State Senate, both brought suit in federal court to block the state court settlement.  But a series of delays in the process led a North Carolina federal judge to rule that blocking the new nine-day extension would be changing North Carolina election law too close to the election and declined to do so.

The plaintiffs appealed that decision to the Fourth Circuit Court of Appeals, but that Court agreed with the district court judge, and also left the nine-day extension in place.  When a petition for an emergency stay was filed with the Supreme Court, by a 5-3 vote — with Justice Kavanaugh changing sides — the Supreme Court also declined to intervene with the same reasoning. But for the same reasons the three-day extension in Pennsylvania might be invalidated when that case is actually heard by the Supreme Court, the nine-day extension — six days longer than provided in North Carolina law — may also end up falling in the end.

The final case that might end up part of a Supreme Court trifecta is one that arose late in Minnesota, where the Eighth Circuit Court of Appeals stepped in and blocked a Minnesota Supreme Court ruling that confirmed a seven-day extension of the “received by” date in the Minnesota election law stature.  The Eighth Circuit based its decision on the same theory being advanced by the opponents of the extensions in both Pennsylvania and North Carolina, which has been commented on favorably by the four Justices who were prepared to block the Pennsylania Supreme Court’s ruling from going into effect.  The Eighth Circuit’s ruling requires that all late-arriving ballots — arriving after the cut-off date specified in the Minnesota statute — be set aside and not delivered to election officials for counting.

All three of these cases involve the same critical issue of how to determine the “deadline” for receiving ballots when there is a date specified in the state’s statute, but Court rulings determine that another date is necessary to avoid constitutional problems.  Do Courts have the authority to unilaterally impose new dates in conflict with the dates set by the Legislature of each state?  The outcome of that question will impact what ballots in each of the states was validly case — and what ballots were not.

Get ready to hear, over and over again, “Count all the votes.”