The US Supreme Court is leaving in place for now a Pennsylvania state Supreme Court decision that allowed the counting of ballots received up to three days after the election, even if there is no legible postmark.
The justices on Wednesday denied a request from Pennsylvania Republicans to review the decision on an accelerated basis.
The court later on Wednesday allowed the counting of ballots in North Carolina received up to nine days after the election as long as the ballots are postmarked by Election Day.
Justice Amy Coney Barrett did not participate in the consideration of either motion.
The court’s public information officer said that Barrett did not participate because of the need for a “prompt resolution” and because she had not had the time to fully review the filings. Democrats have been pressing the new justice to recuse herself from cases involving the election.
Pennsylvania is a critical state for both President Donald Trump and former Vice President Joe Biden.
The order was issued with no noted dissents, but in a statement accompanying the order, Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch, said that it was too close to the election for the justices to step in.
“I reluctantly conclude that there is simply not enough time at this late date to decide the question before the election,” Alito said, but he left open the possibility that the court could still hear the case on a shortened schedule after the election. The state attorney general’s office said county boards will segregate all ballots received after 8 p.m. on Election Day until 5 p.m. on November 6, Alito noted.
Alito made clear that he was highly skeptical of the ruling by Pennsylvania’s high court. He said the question had “national importance’ and that there is a “strong likelihood that the State Supreme Court decision violates the Federal Constitution.”
Justin Clark, deputy campaign manager and senior counsel to the Trump campaign, said that the court “deferred the important issue in this case – whether state courts can change the times, places and manners of elections contrary to the rules adopted by the state legislature – until after November 3rd.”
Pennsylvania Attorney General Josh Shapiro emphasized that the court’s action means voters know the rules.
“We applaud the Court’s decision to slow down, get to regular order, and let Pennsylvania have an election. Now we must vote and take time to count all eligible ballots,” Shapiro said in a statement. “The denial of expedited review is good for Pennsylvania voters, who will not have the rules changed on them on the eve of the election without proper review. We know this fight may not be over and we are prepared.”
This is the second time the court has considered the Pennsylvania issue.
Back on October 19, the justices deadlocked 4-4 on an emergency stay request, with Chief Justice John Roberts siding with the liberals to allow the extension pending appeal. It would have taken five justices to grant the Republicans’ request.
Knowing that Barrett would soon be confirmed to the bench, the lawyers for the state GOP returned to the Supreme Court late last week and asked the justices to formally take up the case, put it on an accelerated schedule and decide the case without oral arguments before Election Day.
They argued that the justices needed to review the case on an accelerated schedule because of the “imminence of the general election in which millions of Pennsylvanians will cast their votes.” They said that the state Supreme Court was wrong to order a three-day extension and that the decision was “incompatible” with the General Assembly’s clear legislative intent.
This story has been updated with comment from the Trump campaign and Pennsylvania attorney general.