[With the Senate set to vote on Monday on the nomination of Judge
Amy Coney Barrett to fill the vacancy left by the death of Justice
Ruth Bader Ginsburg, there could be nine justices to consider, and
eventually vote on the renewed lawsuit.] [[link removed]]

PENNSYLVANIA REPUBLICANS RETURN TO SUPREME COURT TO CHALLENGE
EXTENDED DEADLINE FOR MAIL-IN BALLOTS  
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Amy L Howe
October 24, 2020
Howe on the Court
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_ With the Senate set to vote on Monday on the nomination of Judge
Amy Coney Barrett to fill the vacancy left by the death of Justice
Ruth Bader Ginsburg, there could be nine justices to consider, and
eventually vote on the renewed lawsuit. _

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Four days after the justices left in place a ruling
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the Pennsylvania Supreme Court that requires election officials in
that state to count mail-in ballots received within three days after
Election Day, Nov. 3, Pennsylvania Republicans returned to the Supreme
Court. This time, rather than asking the court to put the state
supreme court’s ruling on hold, they asked the justices to rule on
the merits of the case – and to do so before Election Day. And with
the Senate set to vote on Monday night on the nomination of Judge Amy
Coney Barrett to fill the vacancy left by the death of Justice Ruth
Bader Ginsburg, there could be nine justices to consider, and
eventually vote on, the Republicans’ request.

The dispute now back before the Supreme Court began when the
Pennsylvania Democratic Party filed a lawsuit that challenged parts of
the state’s absentee-ballot system in light of the COVID-19
pandemic. Relying on a provision in the state’s constitution, the
Pennsylvania Supreme Court extended the deadline for mail-in ballots
until Nov. 6. Ballots that are clearly postmarked after Election Day
would not be counted under the Pennsylvania court’s ruling. Ballots
postmarked on or before Election Day, and ballots with no postmark or
an unclear postmark, would be counted if received by the new deadline.

Republican legislators and the Pennsylvania Republican Party asked the
justices on Sept. 28 to put the Pennsylvania court’s ruling on hold.
They argued that the portion of the ruling allowing unclear postmarks
would result in the counting of some ballots that are actually sent
after Election Day, thereby violating federal election law and the
U.S. Constitution.

The eight-member court denied the request on Monday. Four of the
court’s conservative justices indicated that they had voted to grant
the Republicans’ request and block the state court’s decision.
That was one short of the five votes that the Republicans needed,
which means that Chief Justice John Roberts voted with the court’s
three more liberal justices – Stephen Breyer, Sonia Sotomayor and
Elena Kagan.

The Pennsylvania Republican Party returned to the Supreme Court on
Friday. Noting that the state itself, in its earlier briefing, had
asked the justices to issue a ruling on the merits of the dispute
“as soon as practicable,” the GOP observed that other states are
considering similar extensions for mail-in ballots. The Supreme
Court’s “timely intervention,” the GOP wrote, “could provide
desperately needed clarity and help states avoid the sort of
last-minute changes in election rules this Court has consistently
warned against.”

With the election less than two weeks away, the Pennsylvania GOP
continued, “these questions must be answered immediately.”
Therefore, the GOP asked the court to fast-track consideration of the
case and decide it “on the merits before Election Day or, in the
alternative, on an otherwise expedited schedule.” The GOP told the
justices that it has also asked the state supreme court to separate
ballots received after Election Day from those received before
Election Day.

At the time of publication, the Pennsylvania Republican Party’s new
petition asking the justices to intervene was not yet available on the
Supreme Court’s online docket, but a copy of the petition was
attached to a separate late-Friday filing in the state supreme court.
That filing is available here
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the petition beginning on page 12 of the PDF).

AMY L HOWE Until September 2016, Amy served as the editor and
reporter for SCOTUSblog [[link removed]], a blog devoted
to coverage of the Supreme Court of the United States; she continues
to serve as an independent contractor and reporter for SCOTUSblog.
Before turning to full-time blogging, she served as counsel in over
two dozen merits cases at the Supreme Court and argued two cases
there. From 2004 until 2011, she co-taught Supreme Court litigation at
Stanford Law School; from 2005 until 2013, she co-taught a similar
class at Harvard Law School. She has also served as an adjunct
professor at American University’s Washington College of Law and
Vanderbilt Law School. Amy is a graduate of the University of North
Carolina at Chapel Hill and holds a master’s degree in Arab Studies
and a law degree from Georgetown University.

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