Understanding the split high court decisions on mail ballots

Greg Stohr

A dizzying array of U.S. Supreme Court orders and opinions over the past 10 days has left the rules governing next week’s presidential election in flux.

In rapid succession, the court has allowed extra time for mail-in ballots to arrive in Pennsylvania and North Carolina, but rejected calls for a similar extension in Wisconsin. Along the way, some conservative justices have signaled they would invalidate late-arriving ballots after the election– and potentially help Republican President Donald Trump defeat Democrat Joe Biden.

Workers are shown during a media tour highlighting the preparations for the sorting and counting of mail-in ballots at the Pennsylvania Convention Center for Election Day in Philadelphia, Monday, Oct. 26, 2020.

And the newly-arrived justice who could be the key to it all – Trump-appointed Amy Coney Barrett – has stayed conspicuously silent amid calls for her to recuse herself from election cases.

Here’s what we know, what we don’t know, and what we will be looking for in the coming days and weeks:

Where do things stand in those states?

As of now, ballots must arrive by Election Day in Wisconsin, by Nov. 6 in Pennsylvania, and by Nov. 12 in North Carolina. In all cases they need to be mailed by Election Day.

But things could change, particularly in Pennsylvania, where there’s no guarantee that ballots will be counted if they arrive after Election Day. State officials have told counties to separate out late-arriving ballots. And in a Supreme Court opinion on Wednesday night, three conservative justices raised the possibility those ballots could be invalidated after the fact.

Why are these cases coming out differently?

It’s not totally clear. The court as a whole didn’t give any reasons for the four major orders it has issued – or even say explicitly who was in the majority. All we know is what can be pieced together from opinions written by individual justices.

One factor is that Chief Justice John Roberts has said he is more willing to let state courts extend statutory deadlines than federal courts. That explains why he voted to allow the Pennsylvania extension, ordered by that state’s top court, but to block the Wisconsin one, which was ordered by a federal district judge.

Are there more cases pending?

Yes. The court still has a pending appeal by Pennsylvania Republicans challenging the acceptance of late-filed ballots there. The court on Wednesday said it wouldn’t expedite that appeal for resolution before the election.

But in an opinion for three conservatives, Justice Samuel Alito raised the prospect of accepting the GOP appeal and hearing the case later, perhaps shortly after the election. The bid for review “remains before us, and if it is granted, the case can then be decided under a shortened schedule,” he wrote.

The court cleared up a loose end on Thursday when it turned down a third Republican bid to block the North Carolina extension, after rejecting two requests Wednesday night.

In the lower courts, Republicans are challenging an extension in Minnesota and pressing a challenge on different legal grounds to the extra time in Pennsylvania. Fights on other issues are percolating in Arizona, Texas, Michigan and Nevada.

What’s Barrett’s position?

We don’t know yet. Barrett, who was confirmed by the Senate on Monday, didn’t take part in the court’s two orders on Wednesday night. In an unusual move, she explained through a court spokeswoman who cited “the need for a prompt resolution” and said Barrett “has not had time to fully review the parties’ filings.”

Democrats have called on Barrett to recuse herself from election cases because of Trump’s repeated suggestions that he’s counting on her vote should the election outcome ride on a Supreme Court decision. A county board of elections filed, but then withdrew, a motion for her to recuse in Pennsylvania case.

What about Kavanaugh?

Justice Brett Kavanaugh, another Trump nominee, took a strong stance Monday night with an opinion in the Wisconsin case. He suggested sympathy for Trump’s unsubstantiated contentions that late-arriving votes would be tainted by fraud, warning of “the chaos and suspicions of impropriety that can ensue if thousands of absentee ballots flow in after election day and potentially flip the results of an election.”

That brought a counter from Justice Elena Kagan, who said “there are no results to flip’ until all votes are counted.”

Kavanaugh also said the Supreme Court can intervene in a presidential election dispute even when a state court is interpreting its own laws, endorsing an opinion by three conservative justices in the 2000 Bush v. Gore case.

But on Wednesday, Kavanaugh was silent when the court allowed the North Carolina extension, which had been ordered by a state elections board. He didn’t join three conservatives who publicly disagreed with the outcome, but he also didn’t say he was in the majority.

The bottom line is that Kavanaugh has strongly suggested he would intervene on Trump’s side after the election in at least some circumstances. But it’s unclear just how far he would go – for example, whether he would invalidate ballots submitted by voters who relied on an extended deadline.

How important is all this?

The sheer numbers mean the deadline issue could decide a close election, particularly if everything comes down to a single state such as Pennsylvania. Democrats have been pushing to extend deadlines with the expectation that mail-in ballots will favor Biden because a disproportionate number of Democrats are requesting and returning them.

In Pennsylvania, Democrats account for 63% of the 3.1 million ballots requested and Republicans 25%, according to data from the Department of State. Of the 2.1 million ballots returned as of Thursday, 68% are from Democrats and 22% from Republicans, data show.

But there are still almost 985,000 ballots still to be returned in Pennsylvania, and Governor Tom Wolf and Secretary of the Commonwealth Kathy Boockvar, both Democrats, are telling voters to drop off their ballots in person immediately to avoid any risk they’ll arrive late in the mail, and won’t be counted.

About 2.6 million mail ballots have yet to be returned in four swing states: Pennsylvania, Wisconsin, Michigan and North Carolina, according to the U.S. Elections Project, which that tracks early voting.

What are the deadlines elsewhere?

As of now, 28 states, including Wisconsin, require mail ballots to be received on or before Election Day, according to the National Conference of State Legislatures. Twenty-two, including Pennsylvania and North Carolina, accept ballots after Nov. 3 if they are postmarked by Election Day.

In most swing states, ballots must be received by Election Day. That includes Florida, where mailed ballots must be received by the time polls close Nov. 3 and are to be counted that evening. An exception is Ohio, which counts ballots received up to 10 days after the election as long as they’re postmarked by Nov. 2.