Pennsylvania Democrats filed responses with the U.S. Supreme Court on Thursday after President Trump’s campaign called on the high court to take up and rule on a case related to the Pennsylvania Supreme Court allowing the extension of the counting of mail-in ballots to three days after Election Day as long as they were postmarked by the time polls closed.
Pennsylvania Attorney General Josh Shapiro, a Democrat, filed a response on behalf of Kathy Boockvar, the secretary of the Commonwealth of Pennsylvania, on Thursday.
“Because the Trump Campaign cannot satisfy the standard for intervention as of right or by permission, the motion should be denied. This matter has been pending before this Court for nearly six weeks. One day after Election Day, and for the second time in this case, the Trump Campaign has filed a motion for leave to intervene,” Shapiro said. “The Trump Campaign’s first motion was properly denied by the Pennsylvania Supreme Court because its generalized grievance in maintaining the electoral status quo was insufficient to justify standing or intervention. That defect has not been cured by the passage of time … The Court should deny the motions to intervene.”
The Trump campaign argued that the Supreme Court should be the final arbiter after the high court decided late last month that it would not expedite its review of the matter before Election Day.
“The United States Constitution is clear on this issue: the legislature sets the time, place, and manner of elections in America, not state courts or executive officials,” Trump deputy campaign manager Justin Clark said on Wednesday. “As the President has rightly said, the Supreme Court must resolve this crucial contested legal question, so President Trump’s Campaign is moving to intervene in the existing Supreme Court litigation over the Pennsylvania Supreme Court’s unlawful extension of the mail-in ballot receipt deadline.”
Pennsylvania’s Act 77 allowed its voters to cast their ballots by mail but required that all mailed ballots be received by 8 p.m. on Election Day to be counted. It had not changed that deadline during the coronavirus pandemic. But Pennsylvania’s Supreme Court said in a 4-3 ruling that mail-in ballots would not need to be received by Election Day, instead deciding that ballots could be counted so long as they were postmarked on or before Tuesday and were received within three days. The state's high court further ordered that ballots lacking postmarks or with illegible postmarks could potentially be counted, too.
“There is no reason for the Court to reverse course now, mere days after Election Day. If anything, the need for immediate review has diminished, because any interest in providing clear pre-election guidance has evaporated. And no new circumstances require this Court to take any precipitous action,” the Pennsylvania Democratic Party told the high court on Thursday. “The petitions challenge the counting of ballots received between 8:00 p.m. on November 3 and 5:00 p.m. on November 6. That window of time has not closed, and it is far from clear how many ballots will be received during it. Even if there were a legal basis for refusing to count any such ballots (and there is not), no reason exists to assume that the number of ballots received in that window would be large enough to be decisive in the races for President and House of Representatives.”
The Republican Party of Pennsylvania filed a short briefing saying it agreed with the Trump campaign.
“Given last night’s results, the vote in Pennsylvania may well determine the next President of the United States,” Trump’s lawyers told the Supreme Court on Wednesday. “And this Court, not the Pennsylvania Supreme Court, should have the final say on the relevant and dispositive legal questions.”
Trump’s lawyers also said: “One week ago, several Justices predicted that the Pennsylvania Supreme Court’s unconstitutional expansion of mail voting could create ‘serious post-election problems’ … The Justices stressed that these important issues had not ‘escaped [the Court’s] review’ … Because the certiorari petitions ‘remain before us’ those petitions could be ‘granted,’ and the case could be resolved under a ‘shortened schedule’ — if the time came when this Court’s review was necessary. That time has come.”
“President Trump has won Pennsylvania,” Trump's personal lawyer, Rudy Giuliani, claimed during a Philadelphia press conference on Wednesday, echoing the repeated claims from many Trump campaign advisers. The Trump campaign has filed multiple Pennsylvania lawsuits.
No presidential candidate has been declared a winner in the state. Ballots are still being counted, and it remains to be seen if Trump will win as major outlets have yet to project a victor. Pennsylvania appears to be a must-win state for the president, with projections showing former Vice President Joe Biden close to clinching an Electoral College win.
Before the Supreme Court passed on taking up the case in October, Shapiro told counties to segregate any ballots that arrived after 8 p.m. on Tuesday from those arriving before then. Under those rules, ballots in Pennsylvania can still be received through 5 p.m. on Friday.
The Pennsylvania Supreme Court has likened the coronavirus pandemic to a “natural disaster” that would justify the deadline extensions.
Following a 4-4 decision on whether to grant a stay on the issue earlier in the month, the U.S. Supreme Court blocked an attempt by Pennsylvania’s Republican Party to stop that counting in October with a 5-3 decision. New Justice Amy Coney Barrett said she didn't participate because she did not have enough time to read through the legal briefs. She could participate if the Supreme Court decides to take up the case now.
Justice Samuel Alito wrote in late October that he would have granted the GOP's request to limit ballot counting after Nov. 3. Alito, whose dissent was joined by Justices Clarence Thomas and Neil Gorsuch, made clear that the Supreme Court could still rule on the Pennsylvania court's decision after Election Day.
“The Court’s handling of the important constitutional issue raised by this matter has needlessly created conditions that could lead to serious post-election problems. The Supreme Court of Pennsylvania has issued a decree that squarely alters an important statutory provision enacted by the Pennsylvania Legislature pursuant to its authority under the Constitution of the United States to make rules governing the conduct of elections for federal office,” Alito wrote. “This is not a denial of a request for this Court to order that ballots received after election day be segregated so that if the State Supreme Court’s decision is ultimately overturned, a targeted remedy will be available.”
The Trump campaign has filed numerous other lawsuits across Pennsylvania, including in the Democratic stronghold of Philadelphia, where Republicans have alleged that their poll watchers are being blocked from observing the ongoing vote count in spite of a court order, though Trump team lawyers said some GOP poll workers were indeed in the counting room during a court hearing Thursday evening. The Trump team has asked a federal court to pause vote counting in Philadelphia amid that dispute.
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