(This story was updated at 7:20 p.m. on 10/28/20.)
The U.S. Supreme Court will not weigh in on a Pennsylvania mail-in ballot dispute before the Nov. 3 General Election, but may decide later whether it’s unconstitutional for counties to accept postmarked ballots that arrive after Election Day.
In an opinion issued late Wednesday afternoon, Justice Samuel Alito wrote that the Pennsylvania Supreme Court likely overstepped its bounds and tried to rewrite state law when it ordered counties in September to accept mail-in ballots until 5 p.m. on Nov. 6, as long as they are postmarked by Election Day.
But Alito wrote that the court could not grant a request, sought by the Pennsylvania Republican Party, to overturn that ruling a week before the election.
“That question has national importance, and there is a strong likelihood that the State Supreme Court decision violates the Federal Constitution,” he added. “But I reluctantly conclude that there is simply not enough time at this late date to decide the question before the election.”
Supreme Court Justices Clarence Thomas and Neil Gorsuch joined Alito’s opinion.
Justice Amy Coney Barrett, a conservative who was confirmed to the court on Monday, did not consider the motion, since “she has not had time to fully review the parties’ filings,” a court spokeswoman told the New York Times.
The opinion Alito issued Wednesday is not the final judgment on the case that Pennsylvania Republicans brought earlier this month.
While the court denied a request to expedite the case, the Republican Party’s petition remains before the court and can “be decided under a shortened schedule” if it is granted, Alito wrote.
Michael Dimino, a professor of constitutional law at Widener University Commonwealth Law School in Harrisburg, said the court will likely take up the case only if the presidential race hinges on a close vote count in Pennsylvania.
“The courts usually like to decide cases only when their decision matters,” Domino said. “They don’t want to issue a ruling that could be controversial and disruptive on a short schedule when it might turn out not to make a difference.”
Domino said an 11th hour rule change by the Supreme Court would only serve to confuse voters and election administrators ahead of Nov. 3.
It’s also not clear how many ballots their ruling would affect, given that nearly two-thirds of mail ballots have already been returned to county officials.
But if preliminary results suggest the presidential race could down to a few thousand votes in Pennsylvania, “the court might say ‘well, now we are forced to decide’” whether mail ballots received after Nov. 3 will count, Dimino said.
State officials have hinted this week that ballots that ballots received after Nov. 3 are not guaranteed to be counted.
They’ve urged Pennsylvania voters to hand-deliver ballots to county officials instead of relying on the postal service.
The Pennsylvania Department of State on Wednesday ordered counties to segregate ballots they receive between 8:00 p.m. on election night and 5:00 p.m. on Friday, Nov. 6 from all other voted ballots, and to not open them until ordered by the state.
That was a requirement the Pennsylvania Republican Party sought in its initial petition before the Supreme Court, arguing that it would provide a targeted remedy if the postmark ruling was overturned.
An earlier appeal to the Supreme Court over the extended deadline tied 4-4 on Oct. 19.
Republicans filed their new appeal over the weekend, shortly before Barrett’s confirmation vote Monday.
The extended ballot deadline was ordered by the state Supreme Court in mid-September, part of a sweeping decision that also declared ballot drop off boxes were legal and restricted out-of-county poll watchers.
The state court’s ruling was in response to a case brought by the Pennsylvania Democratic Party, who challenged the state’s voting laws amid the COVID-19 pandemic and widespread postal delays.
“The Election Code should be liberally construed so as not to deprive … electors of their right to elect a candidate of their choice,” Justice Max Baer, who was elected as a Democrat, wrote.
The state court’s four liberal justices signed on to the order extending the ballot deadline. Three other justices — one liberal and two conservatives — dissented.
The U.S. Supreme Court decided on a similar case about extended ballot deadlines earlier this week. On Monday, they declined to allow Wisconsin — another Rust Belt state seen as important in next week’s election — to accept ballots up to six days after election day.
Capital-Star Editor John L. Micek contributed initial reporting on this story.