SCOTUS to Pennsylvania: Segregate post-Election Day ballots … for now

Score a win for Donald Trump’s legal efforts in the presidential election, but be sure to score it as a preliminary win. And even then, as the late-arriving order from Supreme Court Justice Samuel Alito notes, the order essentially formalizes a pledge made by Pennsylvania Secretary of State Kathy Boockvar to segregate all ballots received after Election Day. But it does make this more enforceable, and it answers complaints from Republicans that the state was allowing those ballots to be commingled:

In Pennsylvania, the biggest fight has been over ballots that are postmarked by Election Day but arrive later. In September, the state Supreme Court ruled, over Republican objections, that election officials could accept ballots arriving up to three days later. The U.S. Supreme Court declined to intercede, but left open the possibility that it could revisit the question.

Separately, the Supreme Court did grant the Trump camp a minor victory in Pennsylvania on Friday evening, when Justice Samuel A. Alito Jr. ordered election officials there to keep the late-arriving ballots separate from other ballots, and not to include them, for now, in announced vote totals. But the victory was essentially in name only: Pennsylvania’s secretary of state had already given that instruction.

The entire dispute over the late-arriving ballots could be moot, because Mr. Biden has taken the lead in Pennsylvania even without those late-arriving ballots.

Alito’s order cites two Boockvar “guidances” issued to tabulators last week, but suggests that he finds credible the reports that those guidances aren’t being followed. Alito also writes that the court was unaware that there actually were two “guidances” issued by Boockvar, and that some county boards didn’t think either were legally binding:

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.

If they have already begun to commingle those ballots, this may be a moot point. There would be no way to pull those votes back out of the count, even if the Supreme Court was inclined to invalidate ballots received after November 3. Courts are usually loathe to take votes off the table, interfering with arguably valid votes cast by citizens in the basic exercise of the franchise. Clearly the court is interested in the mess in Pennsylvania, but it’s one they helped create with a 4-4 split that left the state’s change on postmark issues in place. Voters then relied on that rule, which means that the court has to take that into consideration.

As to the NYT’s points about Biden’s lead, there’s a difference between those received after November 3 and those counted after November 3. Pennsylvania didn’t allow the counting of any mail-in ballots until after Election Day, largely thanks to the Republicans in the state legislature and in county governments. No one’s sure how many of those were received without a postmark or a postmark after the statutory November 3 deadline, and any order striking that vote would only apply to those ballots, not all of those counted after November 3. Needless to say, the vast majority of those ballots almost certainly arrived ahead of the deadline, and that’s almost certainly the vast majority of the count since then, too.

At the moment, Biden has a lead of about 29,000 votes, with still more to count in Dem-friendly Philadelphia and Allegheny counties. The Inquirer estimated the outstanding total at around 100,000 last night, and after that the provisional ballots, including those that did get segregated over the postmark/deadline issue. Trump would need to win 65% of those outstanding ballots at this point to catch up, perhaps even a bit higher after the counts this morning have eaten through that backlog.

In other words, it’s not looking good for Trump in Pennsylvania, but it’s not over. The Supreme Court could intervene now to strike whatever ballots have been segregated, and that might bring Trump closer to Biden in the overall count. It’s a long shot, but long shots are all Team Trump have at this point. The time to fix the postmark/ballot-counting issues in Pennsylvania was two weeks ago, and everyone blew it.

Keep an eye on the court this afternoon. It sounds as though Alito anticipates a decision by this evening one way or the other. Even long shots occasionally pay off.

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