President Trump’s campaign called on the United States Supreme Court to take up and rule on a case related to Pennsylvania's high court allowing the extension of the counting of mail-in ballots to three days after Election Day as long as they were postmarked by the time polls closed.
“The United States Constitution is clear on this issue: the legislature sets the time, place, and manner of elections in America, not state courts or executive officials,” Trump deputy campaign manager Justin Clark said on Wednesday. “As the President has rightly said, the Supreme Court must resolve this crucial contested legal question, so President Trump’s Campaign is moving to intervene in the existing Supreme Court litigation over the Pennsylvania Supreme Court’s unlawful extension of the mail-in ballot receipt deadline.”
Pennsylvania’s Act 77 allowed its voters to cast their ballots by mail but required that all mailed ballots be received by 8 p.m. on Election Day to be counted. It had not changed that deadline during the coronavirus outbreak. But Pennsylvania’s Supreme Court said in a 4-3 ruling that mail-in ballots would not need to be received by Election Day, instead deciding that ballots could be counted so long as they were postmarked on or before Tuesday and were received within three days. The state's high court further ordered that ballots lacking postmarks or with illegible postmarks be counted, too.
“Given last night’s results, the vote in Pennsylvania may well determine the next President of the United States,” Trump’s lawyers told the Supreme Court on Wednesday. “And this Court, not the Pennsylvania Supreme Court, should have the final say on the relevant and dispositive legal questions.”
“President Trump has won Pennsylvania,” Trump's personal lawyer, Rudy Giuliani, claimed during a Philadelphia press conference on Wednesday, echoing the repeated claims from many Trump campaign advisers.
No presidential candidate has been declared a winner in the state, where many votes must still be counted, and it remains to be seen if Trump will win, with numerous outlets saying it remains too close to project at this time. Pennsylvania appears to be a must-win state for the president, with projections showing former Vice President Joe Biden is close to clinching an Electoral College win.
Before the Supreme Court passed on taking up the case in October, Pennsylvania Attorney General Josh Shapiro told counties to segregate any ballots that arrived after 8 p.m. on Tuesday from those arriving before then. Under those rules, ballots in Pennsylvania can still be received through 5 p.m. on Friday.
“This was a careful decision designed to ensure all eligible Pennsylvania votes will be counted and to stave off anticipated legal challenges from Donald Trump and his enablers,” Shapiro said.
The Pennsylvania Supreme Court has likened the coronavirus pandemic to a “natural disaster” that would justify the deadline extensions.
Following a 4-4 decision on whether to grant a stay on the issue earlier in the month, the U.S. Supreme Court blocked an attempt by Pennsylvania’s Republican Party to stop that counting in October with a 5-3 decision. New Justice Amy Coney Barrett said she didn't participate because she did not have enough time to read through the legal briefs. She could participate if the Supreme Court decides to take up the case now.
Justice Samuel Alito wrote in late October that he would have granted the GOP's request to limit ballot counting after Nov. 3.
Alito, whose dissent was joined by Justices Clarence Thomas and Neil Gorsuch, made clear that the Supreme Court could still rule on the Pennsylvania court's decision after Election Day.
“The Court’s handling of the important constitutional issue raised by this matter has needlessly created conditions that could lead to serious post-election problems. The Supreme Court of Pennsylvania has issued a decree that squarely alters an important statutory provision enacted by the Pennsylvania Legislature pursuant to its authority under the Constitution of the United States to make rules governing the conduct of elections for federal office,” Alito wrote. “This is not a denial of a request for this Court to order that ballots received after election day be segregated so that if the State Supreme Court’s decision is ultimately overturned, a targeted remedy will be available.”
The majority, which included Chief Justice John Roberts and Justices Sonia Sotomayor, Elena Kagan, and Brett Kavanaugh, did not offer an opinion on blocking the GOP's request.
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