WASHINGTON (CN) — Three conservative justices of the U.S. Supreme Court objected Monday as their colleagues refused this morning to wade into a challenge over Pennsylvania’s three-day extension of the deadline for voters to mail in their ballots for the 2020 election.
“These cases provide us with an ideal opportunity to address just what authority nonlegislative officials have to set election rules, and to do so well before the next election cycle. The refusal to do so is inexplicable,” Justice Clarence Thomas wrote.
Postmarked on or before Nov. 3, only around 10,000 arrived at state Board of Election offices in the three-day window following Election Day. As President Joe Biden secured the state with 81,000 votes over the incumbent Donald Trump, the number was too few to affect that outcome.
Thomas argued Monday, however: “that may not be the case in the future.”
The Pennsylvania Supreme Court backed the extension 5-2, split along party lines in favor of its Democratic majority. In light of the Covid-19 pandemic and U.S. Postal Service delivery delays, the court said ballots postmarked by Nov. 3 and received by 5 p.m. the Friday following the election could be counted. Ballots missing postmarks or with illegible postmarks could also be counted, the court said, as long as there is no indication they were sent after Election Day. The majority favored the Pennsylvania Democratic Party’s argument that “strict enforcement of this [mail-in ballot] deadline … will result in extensive voter disenfranchisement in violation of the Pennsylvania Constitution’s Free and Equal Elections Clause.”
For Pennsylvania Republicans, however, the decision exceeded the court’s constitutional authority and breached federal law, which sets Election Day as the first Tuesday in November. Back in October, the Supreme Court refused to enforce the original deadline, although Thomas favored jumping into the case, as did Justices Samuel Alito, Neil Gorsuch and Brett Kavanaugh.
Gorsuch joined a separate dissent Monday from Alito that said the court should have granted review because the unique circumstances that the Pennsylvania high court cited to justify the extension — the pandemic and mail delays — have already outlived 2020.
“The primary election for Pennsylvania congressional candidates is scheduled to occur in 15 months, and the rules for the conduct of elections should be established well in advance of the day of an election,” he wrote. “We may hope that by next spring the pandemic will no longer affect daily life, but that is uncertain.”
Alito spoke as well about concerns for the U.S. Postal Service. “As voting by mail becomes more common and more popular, the volume of mailed ballots may continue to increase and thus pose delivery problems similar to those anticipated in 2020,” he wrote.
Thomas meanwhile warned that unclear rules “threaten to undermine” the country’s election systems.
“If state officials have the authority they have claimed, we need to make it clear. If not, we need to put an end to this practice now before the consequences become catastrophic,” he wrote.
Settling rules well in advance of future elections would ensure that courts are not put in the position of weighing into disputes during election season in the future, he said.
Monday’s order list from the Supreme Court also includes rejections to post-election challenges from Trump about his losses to Biden in Arizona, Georgia, Michigan and Wisconsin.
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