Republican leaders in the General Assembly on Tuesday asked the Pennsylvania Supreme Court to stay its ruling in a recent election law case, the first stage of what they hope will be an appeal to the U.S. Supreme Court ahead of the Nov. 3 presidential election.
The request argues that the state’s highest court overstepped its authority in a Sept. 17 ruling extending the deadline for some mail-in ballots. As such, it asked for the Supreme Court to delay the implementation of its own ruling.
“Although this Court has the final say on the substantive law of Pennsylvania, the Elections Clause of the United States Constitution vests the authority to regulate the times, places, and manner of federal elections to Pennsylvania’s General Assembly, subject only to alteration by Congress, not this Court,” Republican leadership argued in the request.
The request was filed by Senate President Pro Tempore Joe Scarnati, R-Jefferson and House Speaker Bryan Cutler, R-Lancaster, as well as Senate Majority Leader Jake Corman and House Majority Leader Kerry Benninghoff, both Republicans of Centre County.
Senate Republican spokeswoman Jenn Kocher told the Capital-Star that the request likely will be rejected. If it is, the lawmakers intend to appeal the case to the U.S. Supreme Court, which they hope will overturn the lower court’s ruling.
The state Supreme Court issued a pair of rulings last week that resolved critical questions of election administration ahead of Nov. 3, when election experts expect record high voter turnout and an unprecedented number of mail-in ballots.
The ruling in a case brought by the Pennsylvania Democratic Party ordered that all ballots postmarked by 8 p.m. on Election Day would be counted as long as the ballot arrived by 5 p.m. the Friday after the election. A ballot also will be counted even if it does not have a postmark, or if the postmark is illegible.
The ruling also legalized ballot drop-off boxes. Counties with both Republican and Democratic governments had used such boxes, and some counties were planning to expand the provision to set up early voting stations.
The court also banned out-of-county poll watchers, and ordered counties to toss ballots that aren’t enclosed in secrecy envelopes.
“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 in the decision.
Legislative Republicans argued Tuesday that the court’s ruling unlawfully extends election day in Pennsylvania. Under current state law, ballots sent by military or overseas voters can still be counted if they’re received up to a week after the election.
Election officials across Pennsylvania have warned since the spring that results from the Nov. 3 presidential race could be delayed if they’re still counting mail-in ballots long after polls close.
Republican legislative leaders have spent the last month negotiating changes to the state election code with Democratic Gov. Tom Wolf, but the state Supreme Court’s rulings rendered those talks moot, Kocher said.
Kocher said the court decisions wiped out any leverage that Republican lawmakers had in negotiations with Wolf, who said he would veto an election reform bill Senate Republican leaders introduced in August.
That legislation, co-sponsored by Scarnati and Corman, would give voters less time to request mail-in ballots and counties more time to process them before Election Day.
It closely mirrored a bill that advanced out of the House this month. But Wolf said he opposed any legislation that restricted access to mail-in voting.
“What impetus would the governor have to negotiate with us now that he has what he wants [from the court]?” Kocher said Tuesday.
The court actions, combined with Harrisburg infighting, also have contributed to electoral uncertainty, and some retirements, among county election officials in Pennsylvania, NBC News reported Saturday.
The state Supreme Court’s decision was in line with two other rulings in the recent days. In Michigan, a state judge ordered that ballots postmarked the day before Election Day would be counted for up to two week after the election.
On Monday, a federal judge ruled that Wisconsin ballots postmarked on Election Day could arrive up to a week later and still be counted. They also extended the state’s deadline to register to vote by mail.
These rulings are just a handful of the hundreds of legal actions sparked by voting concerns amid the COVID-19 pandemic, according to NPR.
Justin Levitt, a Loyola Law School professor, has tracked 12 such cases in Pennsylvania.