Republicans have one more shot to overturn a state court ruling that ordered counties to count some mail-in ballots that arrive after Election Day after a GOP congressional hopeful filed a federal lawsuit Thursday.
Jim Bognet, who is challenging U.S. Rep. Matt Cartwright, D-8th District, in northeastern Pennsylvania, filed a federal civil rights lawsuit in the U.S. District Court of Western Pennsylvania asking for the courts to prevent counties from counting mail-in ballots postmarked by Nov. 3 that arrive up to three days after Election Day.
The lawsuit must be decided in the district court and appealed to the circuit court before it could reach the U.S. Supreme Court. But if it does make it that far, it would likely be after the confirmation of Judge Amy Coney Barrett as the court’s ninth justice.
The suit stems from a state Supreme Court ruling earlier this fall. Citing postal delays, the court ruled that counties could still count mail-in ballots received by election offices up until 5 p.m. on the Friday after Election Day.
At the time, the court’s liberal majority argued that “the Election Code should be liberally construed so as not to deprive … electors of their right to elect a candidate of their choice.”
But Republicans have claimed the decision violates the U.S. constitution by extending voting past election day, an argument Bognet repeated in a statement announcing the lawsuit.
Bognet said the ruling “will deprive the people of my district in Northeast Pennsylvania of a fair and legitimate process that they can trust.”
Even before the state Supreme Court ruling, Pennsylvanians who cast military or international ballots would still count if their mailed ballot arrived up to a week after election day.
State Senate Republicans appealed the ruling to the U.S. Supreme Court, which split 4-4 this week on their request to stay the lower court’s ruling and disqualify all ballots that are received after Election Day.
It’s impossible to know what motivated the justices, since they did not file opinions in the case.
Michael Dimino, a professor of constitutional and election law at Widener Commonwealth Law School, told the Capital-Star earlier this week that federal courts typically don’t like to get involved in issues of state law, even ones involving election administration.
The four justices who voted to grant the Senate Republicans’ request signaled their intent to have the high court settle the Pennsylvania dispute, Dimino said. But since they couldn’t muster a majority vote, the state supreme court ruling was sustained.
If the Supreme Court is asked to weigh in on the issue again, this time with a fresh case and a newly appointed justice, the outcome could change, he said.
“The same issue could come back, and if a fifth vote [in favor] is there, they would get involved,” Dimino said.
Secretary of State Kathy Boockvar hinted this week that a Nov. 3 postmark might not be enough to guarantee that a ballot is counted.
“The safest way to make sure that your ballot is counted is to make sure it is received by November 3,” Boockvar said during a press briefing Wednesday. “Drop it off in person if you can.”
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