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SCOTUS again denies relief 4-4 in Pennsylvania late ballot case, Barrett doesn’t participate in decision

SCOTUS again denies relief 4-4 in Pennsylvania late ballot case, Barrett doesn’t participate in decision

Roberts joins liberals again in denying relief from PA Supreme Court ruling allowing ballots, even without valid postmarks, to be counted if received three days after Election Day. But as the dissent notes, the issue doesn’t go away. 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 challenging those ballots.

https://commons.wikimedia.org/wiki/File:Official_roberts_CJ.jpg

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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Comments

So how long are we spozed to wait for the post office?

Good thing they hurried to get her on the court so she could recuse herself.

    But, the earlier 4-4 vote was valuable precedent. (sarc)

    Temujin in reply to txvet2. | October 29, 2020 at 11:52 am

    I could find nothing that supports your analysis that she recused herself. It is more likely that CJ Judas Roberts precluded her from participating, due to it having been an existing case … or some other administrative excuse.

Mark Levin reading this very article on line now

Again Roberts screws Pennsylvania conservatives

Well, PA holding onto ballots that arrive late during the expanded period is a win of sorts. They are, in effect, provisional ballots. The danger was that they would be intermixed with other ballots in some irrevocable manner.

That said. As a practical matter the dissent is wholly correct. It is inarguably better and wiser to set the rules of the election prior to election day. This seems to me a ‘shot across the bow’ in that failure of PA voting officials to keep these late/unmarked ballots separate will have consequences.

Of course if they are separate they could be destroyed by the inadvertent arson of the anarchist mobs now raging in certain parts of PA. Not to mention the several tens of thousands of inaccurate ballots mailed out; with the wrong down ballot congressional races for those districts.

This will be a flipping moving train wreck. Day after day. Lawyer up in PA.

    zennyfan in reply to CommoChief. | October 28, 2020 at 7:20 pm

    John Roberts gives a big finger not only to conservatives but also to the rest of the country, which has a passing interest in knowing in timely fashion who won the presidency. Too bad he picked a critical swing state to deviate from other cases and to permit PA to violate the U.S. Constitution. Shows how much he detests Trump and the contempt he has for Trump’s voters. Roberts aside, I’m increasingly pessimistic about the results — even Rush was sounding desperate today.

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.
____________________________________________________________

and what of the needs of the voters in pennslyvania?–what of their voices and intentions?

pennsylvania–lord

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.

Great, and what’s the penalty when the locals blow him off and mix them all together?

Hopefully, Pennsylvania may not matter at all in the end. It’s entirely possible that by the time they get around to counting the votes in PA, Trump will have already won with all the electoral college votes he needs making PA irrelevant.

Is this a case where the Court had already heard arguments, before Justice Barrett was confirmed?

W prevented Al-Gore. Roberts remains a manifestation of W’s affinities, proclivities and compromised discernment. Preventing Gore and Fonda-Kerry is a pitiful legacy and has come at a heavy cost to democracy.

Choosing between the lesser of evil is a fool’s errand. Roberts is no Rehnquist. Prospectively, Justice Barrett will have opportunity to take Mr. Roberts to task.

I don’t think the post office will be the issue. In Florida, Dade County, the ballots were observed coming in the trunks of cars long after the polls were closed, then immediately mixed with ballots already received and opened. In CA, Orange County, ballots were carted in by the hundreds 12 days after the election and counted as if postmarked even though not a single one by that date had a postmark or any other indication the votes were timely cast.
This is what SCOTUS appears to be intentionally allowing in spite of the clear wording of the Federal voting statute that all voting stops at midnight.

    randian in reply to puhiawa. | October 29, 2020 at 3:48 am

    If such things were observed, why was nothing done about it? You have witnesses, why aren’t they testifying before a Federal grand jury?

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 . . . 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.

These seem to be key points. The question does not involve interpretation—that is, understanding—of legislation. Therefore, the court is admitting that it’s writing its own law. Since there is no Constitutional authority for a court to do this, what is the constitutional question?

    Brave Sir Robbin in reply to tom_swift. | October 28, 2020 at 7:39 pm

    The law “lives and breaths” don’t you know. Therefore, it has its own mind, which is divined and pronounced by the black robed priests who are accountable only to themselves, not even God.

    puhiawa in reply to tom_swift. | October 28, 2020 at 9:36 pm

    The Constitution gives sole authority to the legislature to adopt election laws. Where the Federal law is silent, State law controls. In the instant case both Federal and State law prohibit voting after midnight, with the State law stating that ballots must be postmarked.
    Roberts is insane with TDS. We already know Breyer is near insane with his belief in both unwritten international law and statutes of convenience from any source whatsoever that will support his politics. Sotomayor is decidedly the very opposite of a wise woman and has no business being a judge in any court in the land. As for Kagan, she embarrasses herself.

notamemberofanyorganizedpolicital | October 28, 2020 at 7:29 pm

OH MY!

Ot, but on the other hand…..

The Democrat Nazi Socialist Party

of Biden/Harris/Obama and Hillary!

Philly BLM Rioters Threaten Jews “You Don’t Belong Here”

https://www.weaselzippers.us/458257-philly-blm-rioters-threaten-jews-you-dont-belong-here/

How ironic is it that Chief Justice Roberts, who prefers to engage in legal legerdemain, owes his position to Chief Justice Rhenquist who was willing to decide Bush v Gore on the mertis. Had Rhenquist been imbued with the courage of Roberts, Roberts would not be been Chief now.

John Roberts is a sad disgrace.

OwenKellogg-Engineer | October 28, 2020 at 8:19 pm

Florida – 2000 elections: The hanging chad, never to be forgotten.

Pennsylvania – 2020 elections: Hold my beer….

What’s this about 5-3 for NC 6-day extension?

I am disappointed. Who would rid us of this terrible priest, I mean, justice? Please retire Roberts.

Christopher B | October 28, 2020 at 8:59 pm

Everybody take a breath, go to RCP, pull up the ‘make your own map’, and give DJT every state he won in 2016 except MI, WI, and PA.

He will have 260 EVs.

He only needs 1 of the three, or flip MN, to get to 270.

If PA is decisive, Biden has already flipped enough states Trump won in 2016 that he is winning going away.

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.

Yeah, so are they claiming the job is hard?
That isn’t up for consideration.

The new PA decision is not unexpected. In order for it to be changed, Roberts would have to change his vote. To do that he would have to admit that his earlier decision was wrong. That is not going to happen. In the NC case, no reason was given for not granting the injunction. So, the reasoning of the majority is unknown there. However, as with the actions of the court right after the passing of Antonin Scalia, where Robert ruled to maintain the existing status quo, his reasoning is likely the same. He will defer until Barrett is active.

Now, the most likely reason why Barrett did not participate is because she likely has no staff and no background on the case. The same is true in the NC case.

Roberts seems to be mainly motivated by making the institution he heads as irrelevant as possible.

He’ll go full Cirq de Solei contortionist to “defer” to really anybody else.

Surely these great legal scholars are not so dim as to believe they are above it all in the event of civil war? Because I can assure the American public that is not the case. The communist, in all their guises, that currently sit there will be routed just like the communist in the ditch. Let me assure all that in the coming conflict that all commu ist and their enablers will be slaughtered. Eat. death toll is 60-80 million. Exiles and deported is 40-50 million. I’m pretty sure this includes roberts.

As Lennon said: Julia,..

Heh, oh, there’s a ‘preview’ button, lol.

Frezz in the hizzy | October 30, 2020 at 7:43 pm

Roberts has got that classic Prozac-gaze.

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