This is the docket in the first case challenging the judicial branch of Pennsylvania’s approval allowing the state law to be “violated” or “changed” through the relaxation (or judicial abrogation) of the statutes regarding deadlines for voting on November 3, 2020.
The state legislature (in October of 2019) passed a law that “for the first time” allowed “no-excuse mail-in voting” to every registered Pennsylvania voter. It also allowed mail-in and absentee ballots to be applied for and submitted by 8:00 p.m. on election day.
In April of 2020 “a group of individual and organizational” petitioners filed a petition seeking a declaration that (1) the 8:00 p.m. “received by deadline” for the June primary election be extended; (2) prepaid postage on mail-in ballots be required; and (3) allow the use of third-party assistance (ballot harvesting) in collecting mail-in ballots. That was the first suit. A special master was appointed, and recommended that all relief be denied.
The second suit was filed on July 10, 2020. In that suit, the claimants sought to “suspend” the statutory 8:00 p.m. “received by deadline” for the receipt of ballots to one week after the elections, and afford numerous other forms of relief.
On September 17, 2020, the Supreme Court of Pennsylvania, without presentation of any factual evidence, granted partial relief. It judicially extended the statutory received-by deadline by three additional days after Election Day, until 5:00 p.m. on Friday, November 6, 2020. The Court went even further by “establishing a presumption that a mail-in ballot lacking any postmark or other proof of mailing was mailed before Election Day ‘unless a preponderance of the evidence’ demonstrates otherwise.‘”
The challenger in the Supreme Court concisely states: “The Supreme Court [of Pennsylvania] has not only overridden the constitutionally delegated authority of the state legislature over election law, but it has also mandated the counting of mail-in ballots, which bear no evidence that they were cast on or before Election Day at all.” (emphasis added).
The petitioners filed a petition for a writ of certiorari and also sought expedited consideration in the United States Supreme Court. On October 28 the Court denied that relief in a 4 to 4 split (because Justice Amy Coney Barrett did not participate). Justices Alito, Thomas and Gorsuch issued a statement disagreeing. They stated that the Supreme Court of Pennsylvania “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 [Article I, section 4] to make rules governing the conduct of elections for federal office.”
The statement continued:
“In a law called Act 77, the legislature permitted all voters to cast their ballots by mail but unambiguously required that all mailed ballots be received by 8 p.m. on election day. 2019 Pa. Leg. Serv. Act 2019–77; see 25 Pa. Stat. Ann., Tit. 25, §§3146.6(c), 3150.16(c) (Purdon 2020). It also specified that if this provision was declared invalid, much of the rest of Act 77, including its liberalization of mail-in voting, would be void. Act 77, §11. The legislature subsequently made it clear that, in its judgment, the COVID–19 pandemic did not call for any change in the election-day deadline. In a law enacted in March 2020, the legislature addressed election-related issues caused by the pandemic, but it chose not to amend the deadline for the receipt of mailed ballots.”
In the face of Act 77’s deadline, the Pennsylvania Supreme Court, by a vote of four to three, decreed that mailed ballots need not be received by election day. App. to Pet. for Cert. 80a–81a. Instead, it imposed a different rule: Ballots are to be treated as timely if they are postmarked on or before election day and are received within three days thereafter. Id., at 48a. In addition, the court ordered that a ballot with no postmark or an illegible postmark must be regarded as timely if it is received by that same date. Id.,
at 48a, n. 26. The court expressly acknowledged that the statutory provision mandating receipt by election day was unambiguous and that its abrogation of that rule was not based on an interpretation of the statute. Id., at 43a. It further conceded that the statutory deadline was constitutional on its face, but it claimed broad power to do what it thought was needed to respond to a “natural disaster,” and it justified its decree as necessary to protect voters’ rights under the Free and Equal Elections Clause of the State Constitution. Id., at 44a, 45a–47a.
Giving a sense of where the Court is going and what it would hold if it were to rule on the issue with a 5-4 majority, the statement provided “[T]here is a strong likelihood that the State Supreme Court decision violates the Federal Constitution. The provisions of the Federal Constitution conferring on state legislatures, not state courts, the authority to make rules governing federal elections would be meaningless if a state court could override the rules adopted by the legislature simply by claiming that a state constitutional provision gave the courts the authority to make whatever rules it thought appropriate for the conduct of a fair election. See Art. I, §4, cl. 1; Art. II, §1, cl. 2.”
Read that entire decision here:
The petition was filed and it is now pending. Multiple amicus curiae briefs have been filed. The docket can be accessed and monitored here: