Supreme Court leaves in place Pennsylvania's Nov. 6 deadline for return of absentee ballots

WASHINGTON – The Supreme Court refused for a second time Wednesday to change Pennsylvania's election rules at the 11th hour, handing state Republicans a defeat in their effort to reimpose an Election Day deadline for the return of absentee ballots.

The unsigned order means that for now, ballots received by Nov. 6 will be counted. But ballots received after polls close on Tuesday will be segregated from those received earlier, and if the state turns out to be pivotal, the high court could consider the state GOP's challenge after the election.

Three of the court's conservative justices expressed their disappointment with the action, contending the voting will be "conducted under a cloud" because the state Supreme Court granted the three-day extension over the objection of the state Legislature.

Associate Justice Samuel Alito, writing for himself and Associate Justices Clarence Thomas and Neil Gorsuch, acknowledged there was not enough time to hear and decide the challenge by Tuesday. But he noted that with ballots received after Election Day being segregated, the challenge could be heard at a later date.

"The court’s handling of the important constitutional issue raised by this matter has needlessly created conditions that could lead to serious post-election problems," Alito wrote.

New Associate Justice Amy Coney Barrett did not participate "because of the need for a prompt resolution of it and because she has not had time to fully review the parties’ filings," court spokeswoman Kathleen Arberg said. That is not the same as a recusal, which Democrats have called for in light of President Donald Trump's expressed desire to have Barrett rule in election cases.

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Chief Justice John Roberts, Associate Justice Brett Kavanaugh and the court's three liberal justices did not make their views known. The brief order said that "additional opinions may follow."

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The action came a week after the justices first let stand the extension set by the state Supreme Court. The vote in that dispute was 4-4, with Roberts and the court's three liberal justices refusing to block the state court's action.

Since then, Barrett was confirmed by the Senate and sworn in, giving state Republicans a potential fifth vote to consider their challenge on an expedited basis and revert to the Nov. 3 deadline. But the court acted without her participation.

The justices' action establishes the ground rules for mail-in voting in one of the nation's key battleground states, where President Donald Trump and former vice president Joe Biden are fighting hard for its 20 electoral votes.

Some 2 million absentee ballots have been returned already in Pennsylvania, but 1 million more were requested and have not been received by state officials.

The Pennsylvania ruling is just the latest intervention made by the Supreme Court into America's election process. While originally allowing the three-day extension to stand, the justices blocked a six-day extension in Wisconsin. Both states, along with Michigan, are considered most likely to decide whether Trump or Biden takes the oath of office in January.

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Nearly 400 lawsuits have been filed from coast to coast contesting the way Americans are voting, mostly because of health risks and concerns about potential mail delays caused by the COVID-19 pandemic. Republicans, including Trump's reelection campaign, have been seeking to impose restrictions while Democrats push for expanded voting rights. And the lawsuits could continue after Election Day.

The Supreme Court has been involved in such challenges since April, when it ruled 5-4 along ideological lines that absentee voting in Wisconsin could not be extended past the primary election date. That decision forced state residents who had not received absentee ballots to visit polling places during the early days of the pandemic.

Since then, the high court has issued stopgap rulings on issues ranging from absentee ballot witnesses in Alabama and petition signatures in Idaho to felons' voting rights in Florida and mail ballots for senior citizens in Texas.

In Pennsylvania, the state's Democratic Party originally brought the case in state court, contending the COVID-19 pandemic and expansion of mail-in voting was sufficient reason to extend the Nov. 3 ballot-return deadline. State Attorney General Josh Shapiro, a Democrat, also said the date should be extended, and the state Supreme Court agreed.

That left Republicans and state Senate leaders to defend the original Election Day deadline. They first asked the U.S. Supreme Court to block the state court's ruling as a violation of federal law, which sets Election Day as the first Tuesday in November. They also said the extension violates the Constitution.

Democrats countered that because of the state court ruling, officials already have advised voters that ballots can be received until Friday, Nov. 6. As a result, they said, a reversal would add to confusion and invite additional litigation in other states.

In its latest request, the state Republican Party said by deciding the Pennsylvania dispute, the justices could help resolve similar cases across the country.

"The issues presented are important, recurring, and in need of this court’s immediate resolution," they argued in court papers. "This court’s timely intervention could provide desperately needed clarity and help states avoid the sort of last-minute changes in election rules this court has consistently warned against."

The state Democratic Party countered that a reversal of the later ballot-return deadline could disenfranchise thousands of voters, calling it a "rash and unseemly request."

"A ruling from this court could not realistically issue until the eve of the election," they wrote. "By then, it will be too late for many Pennsylvania voters who have relied on the existing rules to adjust to any change in the rules that this court might impose. Some will have voted already, only to learn that they may have cast their votes too late."

This article originally appeared on USA TODAY: Supreme Court: Nov. 6 deadline for Pennsylvania mail-in ballots stands