The U.S. Supreme Court on Wednesday handed down a pair of closely watched decisions allowing Pennsylvania and North Carolina to accept absentee ballots that arrive after Election Day, prompting a sigh of relief among voting rights advocates who were dreading the possibility of mass invalidation of late-arriving ballots.
But analysts were quick to warn the high court's decision in the Pennsylvania case left open the possibility that ballots arriving after November 3 could be tossed out by the Supreme Court at a later date—a move President Donald Trump has repeatedly made clear he would welcome.
"There's a chance, however slim, that those late-arriving ballots could decide the whole election. If SCOTUS throws them out and ends up handing Trump a second term, it would make Bush v. Gore look like a warm-up act."
—Mark Joseph Stern, Slate
Justice Samuel Alito, with the backing of fellow conservative Justices Clarence Thomas and Neil Gorsuch, wrote in a statement (pdf) accompanying the Pennsylvania ruling that he "reluctantly" concluded "there is simply not enough time at this late date to decide the question before the election," leaving the court no choice but to reject state Republicans' request to block a lower court order allowing ballots to arrive by November 6.
"That does not mean, however, that the state court decision must escape our review," Alito added, pointing to Pennsylvania state officials' order that absentee ballots received after 8:00 pm on Election Day be segregated from ballots that arrived before then.
"If the State Supreme Court's decision is ultimately overturned," Alito wrote, "a targeted remedy will be available."
As HuffPost explained, "This means Alito, Thomas, and Gorsuch are open to a legal challenge brought by President Donald Trump after Election Day that would invalidate votes cast legally in Pennsylvania after the votes are cast―when Trump and the justices would know how many votes he needs to have invalidated to win reelection. Gorsuch doesn't explicitly state his support for tossing ballots after the election in the North Carolina case, but it appears the same logic would apply because both cases raise the same legal question."
Pennsylvania A.G. @JoshShapiroPA directs election officials to segregate mail ballots received after 8pm Election Day, apparently so that they can be destroyed if SCOTUS overrules PA Supreme Court order extending deadline by 3 days to account for pandemic-caused processing delays
— Jess Bravin (@JessBravin) October 28, 2020
Mark Joseph Stern, court reporter for Slate, called Alito's statement "pretty frightening" and spotlighted the potential consequences of a post-election Supreme Court ruling invalidating ballots that arrived after November 3, even if they were postmarked on time and legally permitted under state law.
"Alito described this potential 'targeted remedy' as 'modest relief.' It would be anything but: This 'relief' would likely involve the U.S. Supreme Court nullifying thousands of ballots cast under a lawful court order," Stern wrote Wednesday. "It's hard to overstate the potential impact of such a dramatic action. FiveThirtyEight reports a 37.1 percent chance that the election will come down to Pennsylvania."
"If the race is close enough, the winner of Pennsylvania—and the presidency—might come down to a few thousand ballots," Stern continued. "There's a chance, however slim, that those late-arriving ballots, in other words, could decide the whole election. If SCOTUS throws them out and ends up handing Trump a second term, it would make Bush v. Gore look like a warm-up act."
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In the wake of the high court's rulings in Pennsylvania and North Carolina—which newly confirmed Justice Amy Coney Barrett did not join due to time constraints—voting rights advocates and election experts reiterated their urgent calls for voters to drop off their ballots in person if possible to avoid getting caught up in persistent mail delays caused by Postmaster General Louis DeJoy.
Important info for PA voters:
-SCOTUS refused to overturn PA Supreme Court ruling that ballots sent by Election Day could be received 3 days after
-But SCOTUS could still invalidate those ballots after election
-So if you requested mail ballot, drop it off to make sure counted
— Ari Berman (@AriBerman) October 28, 2020
PENNSYLVANIA VOTERS: The Supreme Court may throw out ballots that arrive after Election Day—even though they are valid under current law. DO NOT MAIL YOUR BALLOT. Drop it off or vote in person. Don't leave your vote in the hands of the Supreme Court. https://t.co/twYb97Vl90
— Mark Joseph Stern (@mjs_DC) October 28, 2020
Vanita Gupta, president and CEO of the Leadership Conference on Civil and Human Rights, tweeted late Wednesday that "high voter turnout in PA with a decisive win will keep the Court out post-election."
"Most important for PA voters right now," said Gupta, "is to vote and drop off ballots as early as possible or vote in-person."