A Small Story About A Short Supreme Court Decision With Big Implications

This is the order in its entirety. That’s it.

Chief Justice John Roberts is the deciding vote in upholding leeway for counting votes amid pandemic in Pennsylvania

If this election is close, Pennsylvania is extremely likely to play a key role. With a high percentage chance it could even be the deciding state this time around.

That’s why this particular Supreme Court ruling is potentially so critical. With only 8 Justices, following the death of Justice Ruth Bader Ginsburg, and Trump’s nominee, Amy Coney Barrett not yet through the Senate, the decision was split evenly 4-4, which means it stands; the attempt to overturn it being denied.

In short: Pennsylvania absentee ballots received up to 3 days after Election Day will still be counted, even if they are not clearly postmarked, unless there’s clear proof the vote was actually cast after Election Day.

More specifically that means, according to the now- upheld decision by the Pennsylvania Supreme Court (p. 37):

[A] three-day extension of the absentee and mail-in ballot received-by deadline to allow for the tabulation of ballots mailed by voters via the USPS and postmarked by 8:00 p.m. on Election Day to reduce voter disenfranchisement resulting from the conflict between the Election Code and the current USPS delivery standards, given the expected number of Pennsylvanians opting to use mail-in ballots during the pandemic.”

And the Pennsylvania High Court adds a footnote regarding ballots that arrive without a postmark or with an illegible postmark, which is also part of what was challenged:

In such cases, we conclude that a ballot received on or before 5:00 p.m. on November 6, 2020, will be presumed to have been mailed by Election Day unless a preponderance of the evidence demonstrates that it was mailed after Election Day.”

And of course, it should be of benefit to all voters, because it increases the chances every vote legitimately cast will be counted. So why would Republicans not want all absentee ballots to be counted?

It’s certainly not because Pennsylvania is sending out mail-in ballots to all its registered voters like some other states are doing. Because it’s not. In Pennsylvania, while anyone who wants can get a mail in ballot, you still have to go through the process of requesting one in order to get one.

Could it have something to do with the fact that Democratic voters in the states so far have put in for 3X more absentee ballots than Republicans? Around 1,800,000 to 700,000. With close to a million of those already returned. Slightly more than 6,000,000 people cast votes in Pennsylvania in the last Presidential election, with Donald Trump winning by 44,000 votes.

It’s probably also worth keeping in mind that when George W. Bush prevailed over Al Gore in 2000, with the Supreme Court’s intervention, the official margin in the state that decided it that year: Florida, was just 537 votes out of a similar total of around 6,000,000.

Monday’s Supreme Court ruling is one of those where the Justices don’t have to write opinions, and don’t even have to say which way they voted, just the ultimate outcome. Unless they want to.

And while no Justices attached an optional opinion, those who would’ve granted the Republicans’ application to block the Pennsylvania Supreme Court-approved measures did make themselves known. And no surprise to learn they are Justices Thomas, Alito, Gorsuch, and Kavanaugh.

Meaning, as the Economist’s Steven Mazie points out:

The 4 dissenters (who must be fighting mad but held their tongue on why) would have told a state court that its interpretation of its state constitution was illegitimate. That is profound judicial activism & bears no resemblance to the “federalism” conservatives espouse.”

Speaking of federalism, one of the core arguments made by Pennsylvania’s Attorney General for keeping the decision in place is that states deciding how to administer their election process is a key aspect of federalism.

Which is interesting, because the Justices who rejected that are the same ones who claim federalism is what they’re all about. In fact, they are all members of the Federalist Society. As is Chief Justice John Roberts.

Also, while the Constitution says Representation can be withheld from states that withhold from their citizens the right to vote, it says nothing about the federal government restricting how individual states choose to administer elections.

Of course, Republican meddling in Pennsylvania is probably far from over, especially if the vote is close and votes are still being counted past Election Day. And by then Judge Barrett might very well be on the Court.

Could Republicans even re-up the case they just lost as soon as Judge Barrett is seated, which could very likely be before Election Day? Sure they could. But would they want to risk appearing so nakedly partisan, cynical and corrupt?