Readers wondered whether Amy Coney Barrett joining the Supreme Court would end the 4-4 deadlock, with CJ Roberts joining with the liberals, preventing SCOTUS from reversing the Pennsylvania Supreme Court order that ballots without a verifiable postmark could still be counted. I cautioned against optimism:

From a reader: Now that we have 9 justices (thank God) can the 4-4 Robert’s “failure” be reviewed by the SC?

Answer: Yes, they filed on Friday, asking for an expedited ruling on the merits (the prior ruling was on a request for an emergency injunction). I wouldn’t get your hopes up, however, given the timing.

The Court just issued its Order denying expedited consideration, effectively ending the effort since the election is just days away. Once again, Roberts voted with the liberal. Justice Barrett did not participate.

The motion to expedite consideration of the petition for a writ of certiorari is denied. JUSTICE BARRETT took no part in the consideration or decision of this motion.

Alito, joined by Thomas and Gorsuch, issued a dissent, noting that it is better to have the issue resolved before the election, not after the election. It sets up a post-election challenge already in the Supreme Court to invalidate ballots received after the legislative deadline:

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….

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 courto rdered 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….

Although there were four votes to enter a stay, the application failed by an equally divided vote. Now, in a last ditch attempt to prevent the election in Pennsylvania from being conducted under a cloud, we have been asked to grant a petition for a writ of certiorari, to expedite review, and to decide the constitutional question prior to the election.

It would be highly desirable to issue a ruling on the constitutionality of the State Supreme Court’s decision before the election….

Although the Pennsylvania Supreme Court rejected Petitioner’s request for that relief, we have been informed by the Pennsylvania Attorney General that the Secretary of the Commonwealth issued guidance today directing county boards of elections to segregate ballots received between 8:00 p.m. on November 3, 2020, and 5:00 p.m. on November 6, 2020. Nothing in the Court’s order today precludes Petitioner from applying to this Court for relief if, for some reason, it is not satisfied with the Secretary’s guidance…

If Pennsylvania makes the electoral college difference, and if the vote is close and late ballots matter, expect legal mayhem as everyone awaits the Supreme Court decision.

So why didn’t Barrett participate? We don’t know for sure, but it is likely that the Court having ruled once on an emergency basis just days ago, she didn’t want her joining the court to be a tie-breaker on a nearly identical issue. That doesn’t mean she won’t paricipate post-election, or that she will refuse to participate in other election issues.


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