In yet another disturbing U.S. Supreme Court decision, three conservative justices signed on to an opinion clearly suggesting they're open to arguments that might invalidate some Pennsylvania ballots after the election.
To understand what's going on, let's start with the positive news. The court as a whole rejected a plea from Republicans to reconsider a case in which the Pennsylvania Supreme Court extended the deadline for mail-in ballots received three days after Election Day, as long as they're postmarked by Nov. 3 (or the postmark is absent or unclear). The court had already declined to involve itself on the issue in a 4-4 split decision, leaving the state court's extension in place.
Newly confirmed Justice Amy Coney Barrett, whose nomination was not yet complete at the time of the previous decision, recused herself from the latest case. According to the Supreme Court's Public Information Office: "Justice Barrett did not participate in the consideration of this motion because of the need for a prompt resolution of it and because she has not had time to fully review the parties' filings."
But while the Supreme Court did not take up the case again, Justice Samuel Alito, one of the court's staunch conservatives, wrote a statement making it clear that he objected to the state court's extension and desperately wanted to overturn it. He also made clear that he would be open to reconsidering the issue after the election — that is, he would be open to throwing out at any mail-in ballots received and counted after Election Day in Pennsylvania, despite the fact that they would be cast and counted in accordance with the rules as they are. Justices Neil Gorsuch and Clarence Thomas signed on to Alito's statement.
"[The] Court's denial of the motion to expedite 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," Alito wrote, in an extreme understatement for such an extraordinary claim. What he means is he's leaving open the possibility to later toss out some voters' ballots.
Alito's position is superbly arrogant. Whatever one may think of the Pennsylvania Supreme Court's extension of the deadline to receive ballots, it is, in effect, the law of the state — just as the U.S. Supreme Court's decisions determine the state of federal law.
But rather than recognizing the court's authority, Alito warns that "the election in Pennsylvania" is "being conducted under a cloud." This claim is based on the idea that Alito himself objects to the court's ruling and nothing more.
In fact, it's his own statement, which threatens to invalidate ballots after they're cast and counted, that is putting the state's election "under a cloud."
Many legal experts argue that it's clearly the state supreme court's role to interpret questions of law in their state, and the Supreme Court shouldn't insert itself to intervene on state law matters. Alito, along with at least some of the other conservatives on the court, argue instead that because the Constitution grants authority over elections to state legislatures, the U.S. Supreme Court can and should step in to uphold the will of the Pennsylvania legislature, which did not want to extend the mail-in deadline.
Regardless of the merits of that debate, however, the legal facts are what they are. The state supreme court ruled, and a challenge to take the case to the U.S. Supreme Court before the election failed. Voters are currently planning to act under the laws as they've currently been established. Alito himself acknowledges that there is not enough time at this point to take the case up again, which is why he did not dissent from the decision of his colleagues not take up the case now.
What's truly arrogant, though, is that in spite those facts on the ground, Alito is continuing to assert that the U.S. Supreme Court should have a say and might overturn the existing rules. He sees it as so necessary that he and the Supreme Court involve themselves in a case that the Pennsylvania Supreme Court has decided that he's openly forecasting that they might overturn an election result and throw out ballots that were legitimately cast under the rules at the time. A more small-c conservative or modest justice would recognize that, whatever his objections in the case, his view hadn't won the day. But that's not how Alito sees it.
This arrogance is especially egregious give the matter at hand. While the issue, of cours,e has the potential to be highly influential, and thus the stakes are high, the state supreme court's decision is about the handling of ballots that would be cast by legitimate voters and presumably delivered by election day. Many states conduct elections this way — it's not as if the change is some extreme or unheard of remedy. Alito's extreme threat to disenfranchise people after the fact is not proportionate to the issue.
All that said, Pennsylvania voters with mail-in ballots would be well-advised at this point to not rely on the postal service to deliver their ballot, given the risks. They should seek out advice from their local election offices and potentially turn in their ballots in person or at official drop boxes, if possible.
Now, despite all the legitimate reasons I've described to be disturbed by Alito's statement, there are several reasons to think the issue is not particularly dire, as law professor Steve Vladeck explained.
In theory, Alito, along with Gorsuch, Thomas, Justice Brett Kavanaugh, and Barrett, could potentially hear a case after the election and decide to throw out enough ballots in Pennsylvania to swing the presidential race from Biden to Trump. But that seems quite unlikely to happen in fact, because a whole slew of factors would have to be in place for the move to work.
First, Pennsylvania would have to be the tipping point state in the electoral college. That's plausible, but far from guaranteed. Even more important, though, is that Pennsylvania would have to be the decisive state. This would mean that Biden only barely won the presidential election, with no extra states. That would likely mean Biden lost in North Carolina, Florida, Georgia, Arizona, and Texas, where he is currently either leading slightly or running neck-and-neck with Trump. Again, this is possible, but it probably isn't the most likely scenario.
The Pennsylvania race would also have to be extremely close, close enough for the mail-in ballots that arrive after Election Day to make the difference between Biden and Trump. Again that's possible, but it doesn't seem most likely when the New York Times polling average has Biden leading in the state by 6 points. Any ballots arriving after Election Day will be split between Trump and Biden — they could even potentially favor Trump — so it's only the final margin that would matter.
And for the Supreme Court's intervention to make the difference, Alito would need Barrett and at either Kavanaugh and Roberts to join him. It's impossible to give odds on how likely this is, but we can content ourselves by saying at least it's not a sure thing that a full five of six conservative justices on the court would be interested in going along with this plan after the votes have been cast.
Vladeck also noted that Pennsylvania has taken the wise step of planning to segregate any late-arriving ballots from the rest of the ballots it counts. That should forestall the possibility that the Supreme Court (or state legislature) would be inclined to say the state's whole election has been tainted by the inclusion of late-arriving ballots and try to circumvent the will of the people.