Pennsylvania Republicans have returned to the Supreme Court in another effort to roll back the state’s mail-in ballot extension, filing their second such attempt just ahead of the imminent confirmation of Amy Coney Barrett and days after the court deadlocked on the issue.
The Pennsylvania GOP asked the justices on Friday night to fast-track a formal review of a major ruling by the state Supreme Court, which held that mailed ballots sent by Election Day and received up to three days later must be counted.
The Keystone State is a crucial battleground in the 2020 election after President Trump won it in 2016 by fewer than 45,000 votes. Both Trump and Democratic nominee Joe Biden campaigned in Pennsylvania on Monday.
If successful, the GOP’s long-shot bid could disenfranchise a number of mail-in voters, with the harm likely to fall disproportionately on Biden supporters, who are considered about twice as likely as Trump backers to vote by mail.
Republicans’ latest request comes less than a week after the Supreme Court left intact Pennsylvania’s mail-ballot extension with a 4-4 deadlock. The tie vote last Monday broke largely along ideological lines, with Chief Justice John Roberts joining the court’s three liberals in denying the GOP’s request to halt the state court ruling, while the court’s four most conservative justices indicated they would have granted it.
Unlike the request that led to the deadlock, the bid filed Friday by the Pennsylvania Republican Party asks the justices to address the merits of the dispute rather than simply halt the state court ruling.
Another key difference is that Barrett, who is expected to be confirmed Monday, may have a say in whether the court takes up the expedited appeal. While only four justices are needed to grant an appeal under normal circumstances, five justices must sign off on a request for expedited review.
Election law expert Rick Hasen called the Pennsylvania GOP’s latest effort a “Hail Mary,” in no small measure because undoing a vote-by-mail extension that Pennsylvania voters have likely come to rely on would be highly disruptive this close to next week’s Election Day.
Still, the dynamics could place enormous pressure on the soon-to-be-seated justice.
“If it does come down to all that, the request to expedite the [petition for appeal] would put Judge Amy Coney Barrett, soon to be the ninth Justice, in an awful position, perhaps increasing the chances she will recuse in the litigation,” Hasen, a law professor at the University of California Irvine, wrote on the Election Law Blog.
Barrett would face pressure from both ends of the political spectrum if she is faced with an election-related lawsuit that could help shape the outcome of the race.
Conservatives hope she would be sympathetic to arguments being advanced by Republicans and their allies that judicial orders to relax voting limits have removed critical election guardrails, opened the vote to fraud and unlawfully taken the management of elections away from state legislatures.
Trump himself has waded into the election law debate, mostly by repeatedly warning, without basis in fact, of the risk of widespread voter fraud this election. He has also encouraged the swift confirmation of Barrett, in part so she could be seated in time to rule on voting litigation.
Democrats have said Barrett’s participation in such cases would present a conflict of interest, and they would be certain to demand her recusal from such disputes.
If the court declines the GOP bid, mail ballots in Pennsylvania will be counted as long as they are postmarked by Nov. 3 — or have no legible postmark — and are received up to three days after Election Day.