Pros say SCOTUS could decide if mail-in votes count when they arrive late.
When the Supreme Court decided this week that Pennsylvania will proceed with plans to rely ballots postmarked by Election Day — even if they arrive as much as three times in the email — Democrats hailed the move as a indication that the high court had been, finally, setting clear rules for Nov. 3.
But experts said the problem in Pennsylvania was far from settled. The high court was really silent on the issue of extending ballot deadlines, rather allowing the state supreme court decision regarding the issue to endure. The split decision still left open the prospect of a brand new, ninth justice to tip the ruling one way or the other.
“Lots of the first answer was that this was a big win for Democrats, but it’s a lot less clear than that,” said Kate Shaw, a Cardozo law professor and legal adviser for ABC News. “The main point is, this is way less decisive then it could appear.”
The Supreme Court is probably not finished sorting out a query which could be crucial to the outcome a close election next month — if ballots sent before Nov. 3, however arriving after, should be counted.
A court decision on a similar situation from Wisconsin is impending, and there are a half-dozen others recently decided or pending in battleground states that may ultimately determine when election boards must stop accepting votes– and the fate of a key number of votes that may decide a close election. Though Election Day is defined by federal law, states create their own rules governing voting and how the ballots are counted.
And some experts state that the legal conflict over the election might burst if the count is shut in battleground states after Nov. 3.
“There’s still very much a chance that there is a renewed challenge in the counting stage,” Shaw said. “So don’t rely on the counting of any ballot that comes after Election Day. There will be litigation after the election about the counting of ballots — notably those that arrive late.”
‘You can’t understate it’
If the competition between President Donald Trump and Democrat Joe Biden is shut in enough battleground states, legal experts said any of those decisions being made by the U.S. Supreme Court in the next two weeks might have an impact on the results of the election due to the unprecedented range of mail voting.
“More people will be voting by email and more organizations will be pushing vote-by-mail,” said Myrna Perez, an attorney at New York University’s nonpartisan Brennan Center. “You can not understate it.”
More than 80 million absentee ballots have been asked — double the number in 2016.
Throughout the recent primary elections, 500,000 mail-in-ballots filed by voters were rejected, and also a third of these were thrown out because they came late, based on an ABC News analysis. That outcome — combined with the new pressures that the coronavirus pandemic is placing on mail-in voting — has set up a legal tug-of-war for the general election.
Democrats are pushing to give voters more time — allowing ballots post-marked from Election Day to be accepted, even if they arrive late. In many cases, a late ballot isn’t the voter’s fault. “Every voter that is mailing at a ballot it’s hoping it’s going to get there on time,” Perez said. “It’s one of those things where voters do their very best. Times are really tough right now.”
“Congress has the power to set the exact time of this election and it has done that — a single national election day,” explained Jason Snead, executive manager of the Honest Elections Project, a legal group asserting on behalf of Republicans at a number of the cases. “A state cannot alter that. It can’t stretch that process.”
Trump has cast doubt on the legitimacy of ballots that arrive after election day and on any results which aren’t immediately on election night. During an interview on Fox News this week, he predicted the Supreme Court’s ruling”mad,””ridiculous,” and”very strange” while expressing dismay that it may lead to some delay in results.
Lower courts have provided a string of mixed perspectives on the matter of the election deadline — especially during a pandemic. Late Tuesday, the Court of Appeals at North Carolina dominated 12-3 that votes postmarked by 5 pm on Election Day might be accepted up to Nov. 12. In Michigan, however, that the Court of Appeals refused a grace period that Michigan officials had created for voters.
That ruling came as nearly 1.4 million voters in the key swing state had already returned their ballots as of Friday. Michigan Secretary of State Jocelyn Benson on Tuesday urged residents to not wait any longer to use the email system to return their ballots. She urged voters to try to hand them.
Some 6,400 ballots were rejected for lateness in the Michigan main this August, based on data from Benson’s office. Trump carried the state by more than 10,000 votes in 2016.
Back in Wisconsin, Democrats have asked the Supreme Court to allow a six-day extension that has been granted by a lower court judge, just to be blocked with an appeals court last week.
The decision”leaves voters in the winner of overworked local and state election officials, a hamstrung Postal Service, along with a merciless virus,” she wrote. “Good luck and G-d bless, Wisconsin. You will need it”
The decision from the Supreme Court about the Wisconsin case should come down daily. If the courtroom deadlocks again, as they did in the Pennsylvania case this week– it would have the contrary sensible impact for Republicans there: the lower court’s ruling prohibiting any expansion would stay in place.
‘A little difficult to read’ Pennsylvania decision
Cases on this question have been brewing at the courts for much of 2020, as it became increasingly clear that more voters would have to rely on the mail due to fears of voting in person in a pandemic.
Back in April, a dispute deadlines at the Wisconsin primary wound up all the way into the Supreme Court. The conservative majority ruled with Republicans in requiring that mail-in ballots take a postmark from on or before election day.
The Pennsylvania decision in the U.S. Supreme Court provided little insight in where the court may finally go next, stated Paul M. Smith, the vice president for litigation and strategy to the Campaign Legal Center, a nonpartisan organization that works on voting rights issues.
“it is somewhat hard to read what happened because the court did not say anything about it,” he stated during a briefing on Monday.
The simple fact that the decision has been 4-4, with Chief Justice John Roberts siding with the more liberal wing of the courtroom, also suggests that the management of the court could change whether Judge Amy Coney Barrett is confirmed as the ninth justice, said Wendy Weiser, a specialist from the Brennan Center.
Weiser told ABC News that when the court received the Pennsylvania case, it had dominated on seven recent voting rights cases on an array of problems, and five went against people seeking expanded opportunities for Republicans.
“Quite simply, her nomination could prove very consequential to election-related litigation this year, if she’s confirmed and chooses to not recuse herself from voting instances.”
Weiser said the Supreme Court could have widespread implications for future elections, since under current rules 19 states rely absentee ballots received after Election Day and accept votes against taxpayers that are allowed to vote after midnight when they have been waiting in long lines.
“It could also have significant effects in a number of different areas of law where trainings are counted from the mailing ,” Weiser said of almost any election associated conclusions from their Supreme Court.
For those attorneys engaged in the flurry of legal action as the election draws near, this has been a chaotic period. But Snead, the manager of the Honest Elections Project, said the current phase may actually be the”calm before the storm.”
If the election is close in any range of crucial battleground states, Snead and other attorneys involved in the voting rights cases stated, the outcome could quickly become entangled in legal conflicts during which ballots count, and which should be discarded.