The Republican Party of Pennsylvania sought in emergency injunction from the U.S. Supreme Court requiring the Secretary of State and County Boards of Election to segregate and secure ballots received after the statutory deadline:

In short, an order from the Court is badly needed. But given some county boards’ refusal to confirm that they are segregating ballots and the Secretary’s changing guidance, an order requiring segregation of ballots may not suffice to preserve RPP’s appellate rights. RPP therefore now asks the Court for an order directing Respondents Secretary of State Boockvar and the county boards of elections, pending certiorari review or further order of the Court, to log, to segregate, and otherwise to take no further action related to any mail-in or civilian absentee ballots received after the General Assembly’s received-by deadline.

Justice Samuel Alito just issued an administrative injunction, pending consideration by the full court:

All county boards of election are hereby ordered, pending further order of the Court, to comply with the following guidance provided by the Secretary of the Commonwealth on October 28 and November 1, namely, (1) that all ballots received by mail after 8:00 p.m. on November 3 be segregated and kept “in a secure, safe and sealed container separate from other voted ballots,” and (2) that all such ballots, if counted, be counted separately.

The attorneys for Pennsylvania had represented, in an earlier litigation that ended up in a 4-4 deadlock twice, that this procedure would be used, but apparently the Supreme Court was just informed that was not the case. Alito continued:

Until today, this Court was not informed that the guidance issued on October 28, which had an important bearing on the question whether to order special treatment of the ballots in question, had been modified. The application received today also informs the Court that neither the applicant nor the Secretary has been able to verify that all boards are complying with the Secretary’s guidance, which, it is alleged, is not legally binding on them.

I am immediately referring this application to the Conference and direct that any response be filed as soon as possible but in any event no later than 2 p.m. tomorrow, November 7, 2020.

It’s unclear that forcing PA to comply with its own statutes on late ballots would make a difference, but it might make some difference depending how the on-time portion ends up.

Added: Here is the Petition for Writ of Certiorari pursuant to which the Application was made. Unfortunately, this case before SCOTUS is too narrow and doesn’t contest failure to verify and match signatures, only addresses late arriving ballots. I believe the lower court litigation included signatures, so maybe it’s preserved (but since they didn’t track non-matching ballots, hard to see what the remedy would be).


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