Pa. Senate Republicans take mail-in ballot fight to U.S. Supreme Court

By: - September 28, 2020 4:15 pm

Republican leaders in Pennsylvania’s state Senate asked the U.S. Supreme Court on Monday to overturn a court ruling giving counties an additional three days to receive and count mail-in ballots, arguing it had sowed chaos in a key battleground state just weeks before the Nov. 3 presidential race.

The petition filed by Senate President Pro Tempore Joe Scarnati, R-Jefferson, and Majority Leader Jake Corman, R-Centre, would overturn the ruling the Pennsylvania Supreme Court issued earlier this month, which ordered county election officials to accept mail-in ballots that arrive until Nov. 6 as long as they were postmarked by Election Day.

“In a year where there is a very real possibility that the final presidential election result hinges on Pennsylvania, the new rules imposed by the decision of the Supreme Court of Pennsylvania (a body elected in partisan elections) could destroy the American public’s confidence in the electoral system as a whole,” the petition states.

The filing with the nation’s highest court comes just days after the Pennsylvania Supreme Court denied a similar request Corman and Scarnati filed with House Republican leaders.

If the nation’s highest court grants this one, Pennsylvania counties would revert to the rules laid out in the state’s election code and reject mail-in ballots that arrive after 8 p.m. on Election Day – regardless of when they were postmarked.

Corman and Scarnati say that any other protocol would run afoul of federal election law. They argue that the state Supreme Court effectively extended the General Election past Nov. 3 by ordering election officials to count ballots that arrive after Election Day – a violation of the U.S. Constitution.

They also say the court usurped the authority of Pennsylvania’s General Assembly, which has sole constitutional authority to regulate elections in the commonwealth.

The Republican-led General Assembly spent the summer at loggerheads with the Democratic Wolf administration over how to amend the state election code ahead of the Nov. 3 election.

More than 2 million Pennsylvanians have requested to vote by mail in the upcoming election – an all-time high.

But county election officials have warned since the spring that election results will be delayed if they aren’t given more time to prepare ballots for counting. Delays in the postal service, meanwhile, stoked fears that voters could be disenfranchised if their ballots do not arrive on time at their county’s election office.

The General Assembly advanced legislation this summer allowing counties to start pre-canvassing ballots three days ahead of the Nov. 3 election. But the bill also advanced the deadline for voters to request mail-in ballots by one week, and restricted the use of satellite election offices and secure drop-boxes to collect ballots.

Republicans said those provisions would prevent a last-minute crush of election mail in the postal service and tighten election security. But they also netted a veto pledge from Wolf, who said he would not support legislation that limited access to mail-in ballots during a pandemic.

Wolf’s negotiations with the Legislature ceased in mid-September when the state Supreme Court resolved a series of election-related lawsuits. They ordered counties to accept mail-in ballots up until Nov. 6 and approved the use of secure ballot drop boxes.

According to Corman and Scarnati, however, those rulings amount to a “parallel path” by the court in an effort to “bypass the Constitutional and state legislative process.”

“The General Assembly’s deliberations and negotiations with the Executive Branch have not resulted in an extension of its ballot receipt deadline. The Supreme Court of Pennsylvania cannot usurp the General Assembly’s authority and unilaterally extend the deadline,” the petition states.

The Republican leaders were represented in court by a legal team that includes Senate Republican Chief Counsel Crystal Clark and election attorney Lawrence Tabas, a Philadelphia lawyer, and chair of the state Republican Party.

Tabas drew scrutiny last week for comments he made to The Atlantic magazine, where he described potential plans with the Trump campaign to have Pennsylvania’sRepublican-controlled Legislature award electoral college votes to the president.

The state Republican Party later said his remarks were taken out of context.

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Elizabeth Hardison
Elizabeth Hardison

Elizabeth Hardison covered education policy, election administration, criminal justice and legislative news for the Capital-Star from Jan. 2019-April 2021. You can find her on Twitter @ElizHardison.