Justice Alito's Order Hints Court Will Take Up Pennsylvania Case Potentially Invalidating Tens of Thousands of Votes

AP Photo/Julio Cortez

As reported earlier on Friday night, Justice Samuel Alito issued an ORDER late in the day directing County Election Boards in Pennsylvania to comply with the “guidance” previously issued by Secretary of the Commonwealth Katherine Boockvar regarding how to handle “late” mail-in ballots received by the Boards.

That guidance was reported to be that all “mail-in” ballots received by such Boards after 8:00 pm on election day November 3 through 5:00 pm on November 6, must be segregated from all other ballots received by the Boards before 8:00 pm on Election Day.  Boockvar’s first “guidance” directed that those ballots, once segregated, were to not be opened and canvassed.

The backdrop for Justice Alito’s Order on Friday night is an application made by the Republican Party of Pennsylvania, among others, to have their petition pending with the Supreme Court, challenging the decision of the Pennsylvania Supreme Court expedited and resolved prior to election day.  The Pennsylvania Supreme Court’s Order extended by three days the deadline by which mailed-in ballots could be received and still counted when Pennsylvania election law states explicitly that for a ballot to be validly cast it must be received by election officials before 8:00 pm on election day.

I’ve written about the issue several times, and for more detailed background on the dispute you can look at the following two stories:

Pennsylvania Agrees To Segregate Late Arriving Ballots Pending Supreme Court Review.

Pennsylvania GOP Seeks Expedited Challenge to Decision of State’s Supreme Court Rewriting of Election Laws.

The motion for expedited consideration of the petition was filed on the Sunday prior to the confirmation of Justice Barrett to the Supreme Court. Her anticipated confirmation would bring the Court back to nine Justices and allow it to reach the merits of the case.  It appeared there might be a 4-4 deadlock when the Court declined to issue an emergency stay earlier in October that would have prevented the Pennsylvania Supreme Court’s Order from being enforced during the election.

Even after Justice Barrett’s confirmation, the Court nevertheless denied the motion for expedited consideration simply because there were not enough days for the opposition to be filed, and oral argument made, and opinions to be written prior to Election Day.  But in joining with the other Justices to deny the petition for expedited consideration, Justice Alito wrote the following in a published statement:

[T]he question presented by the Pennsylvania Supreme Court’s decision calls out for review by this Court—as both the State Republican and Democratic Parties agreed when the former applied for a stay. But I reluctantly conclude that there is simply not enough time at this late date to decide the question before the election. That does not mean, however, that the state court decision must escape our review. Although the Court denies the motion to expedite, the petition for certiorari remains before us, and if it is granted, the case can then be decided under a shortened schedule. In addition, the Court’s denial of the motion to expedite is not a denial of a request for this Court to 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.

Petitioner represents that it will apply to this Court to obtain that modest relief…. and Respondent DPP agrees that such relief is appropriate….  Although the Pennsylvania Supreme Court rejected Petitioner’s request for that relief, we have been informed by the Pennsylvania Attorney General that the Secretary of the Commonwealth issued guidance today directing county boards of elections to segregate ballots received between 8:00 p.m. on November 3, 2020, and 5:00 p.m. on November 6, 2020. Nothing in the Court’s order today precludes Petitioner from applying to this Court for relief if, for some reason, it is not satisfied with the Secretary’s guidance.

That was on October 28, 2020.  Reports are that mail-in ballots were received during the period starting after 8:00 pm on November 3, up until last night.

But on Friday the Republic Party of Pennsylvania applied for an Order from Justice Alito for the relief that was mentioned by him in his earlier published statement.  In the application the Petitioner claimed that Boockvar had issued a second “guidance” to County Boards of Election on Sunday, November 1, advising them that after segregating the late-arriving ballots as previously advised by her Office, the County Boards nevertheless open and canvass the ballots, and that they should “count, compute, and tally” the vote totals while still keeping them separate from other votes.

The prejudice here is that under Pennsylvania’s election law as written, late-arriving ballots are not to be opened or canvassed because they are deemed invalid.  The vote totals for each candidate from such ballots are never known, and no conclusions can be drawn as to whether those votes would have made a difference in a close race.

But by giving direction that the late-arriving ballots should be opened and counted, Boockvar was creating potential added controversy depending on the outcome of the challenge pending before the Supreme Court.  The fact that Boockvar gave this second guidance directing that the late-arriving ballots be canvassed and tallied just days after telling the Supreme Court that would not happen appears to be duplicitous on its face and creates the potential for great controversy depending on how many votes there are and how close the race is.

The Secretary of the Commonwealth confirmed that maybe as many as 25 County Boards of Elections deemed her “guidance” to not be binding, and were not intending to follow the recommendation that the late-arriving ballots be segregated consistent with Justice Alito’s suggestion.

In response to the uncertainty surrounding the status of the compliance with the guidance, Justice Alito made the guidance the basis of an Order issued by him on behalf of the Court.

Justice Alito notes in his Order that the Court was not informed of the modification to the guidance issued by Boockvar on November 1, nor was the Court made aware that not all County Election Boards had confirmed that they were following the guidance and segregating the late-arriving ballots.

The Order gives Boockvar until 2:00 on Saturday to respond to the motion made by the Petitioner.

Also on Friday night, Boockvar’s office issued a statement that there are 102,000 more mail-in ballots to count, although it was not clear whether those were late arriving ballots or ballots that had been received by the the 8:00 pm deadline on election night.