About 10,000 Pennsylvania votes are still sitting in purgatory.
And they’ll remain there for weeks or even longer, until the U.S. Supreme Court tells the state what to do with the mail ballots that arrived after Election Day last month. The justices will decide Jan. 8 whether to take up cases challenging those ballots, the court said Wednesday. The outcome could have major implications for election policy in the future.
For now, the ballots remain excluded from Pennsylvania’s certified presidential and congressional vote tallies, and are not reflected in Joe Biden’s 81,000-vote victory in the state. (They were counted for state races.) Given that Democrats voted by mail far more than Republicans, they are presumably mostly Biden votes.
Responding to concerns about an overwhelming crush of ballots being mailed days before the election, the Pennsylvania Supreme Court in September ordered counties to honor and count any mail ballot that was postmarked by Election Day — the deadline to cast a vote set by state law — but arrived sometime after 8 p.m. that day and within the ensuing three days.
Republicans appealed to the U.S. Supreme Court, and Justice Samuel Alito ordered the late-arriving ballots separated from the rest until the court could decide what to do. For weeks, Democrats feared that a post-Election Day disqualification of those ballots could cost Biden the state, and the presidency. But an urgent campaign to get voters to return their ballots by the original deadline ended with only about 10,000 arriving during the grace period.
That’s how they ended up in purgatory: Alito’s order didn’t specifically say whether those votes should be counted in the final totals, and there’s been little attention paid to them since Biden became president-elect.
The legal fight is no longer about these specific ballots, but about the powers and roles of the state Supreme Court and legislature.
“By resolving the important and recurring questions now, the Court can provide desperately needed guidance to state legislatures and courts across the country outside the context of a hotly disputed election and before the next election,” the Pennsylvania Republican Party wrote in a U.S. Supreme Court filing this past Tuesday.
There were 10,097 ballots received during the grace period, a State Department spokesperson said: 9,428 postmarked by Nov. 3 and 669 that have missing or illegible postmarks.
“SCOTUS ordered counties to strictly segregate these ballots,” said Pennsylvania Department of State spokesperson Wanda Murren, “and it was determined that they would be most clearly segregated by not adding them to the totals until further action by the court.”
While this technically means 10,000 voters are being excluded, there’s clearly no intent to disenfranchise them. Rather, it’s a technical question, with votes only being temporarily left out on paper.
“I don’t believe there’s anything nefarious going on, and I don’t think anybody’s actually hurt by the current situation as the facts lie today,” said Kevin Greenberg, a Democratic lawyer from Philadelphia who represents the state Democratic Party in one of the cases about the ballots.
Still, he and others said, votes matter, and on principle they matter even when they don’t swing an election one way or the other.
“That’s 10,000-some people who really wanted to express a preference in this election, and at the moment, I think they have been denied their right to vote in this election,” said Justin Levitt, an election law professor at Loyola Law School in Los Angeles.
Levitt and Greenberg are among those who said the ballots should be included while they remain in purgatory, since Alito’s order didn’t specifically say not to count them. Without a U.S. Supreme Court prohibiting counting them, they said, the Pennsylvania Supreme Court order is still in effect.
In fact, Levitt said, Alito’s order allows them to be counted — “all such ballots, if counted, be counted separately,” it reads — so the state court order should still stand.
“The order technically does not prohibit or did not prohibit the state from counting them … and so I think these ballots should have been counted,” Levitt said.
On the other hand, said Philadelphia-based Republican lawyer Matt Haverstick, it’s fair to leave the ballots out until the high court rules, since the order is unclear.
“If at the end those votes are supposed to be counted, according to the U.S. Supreme Court, they will be,” he said. “And that’s a different question, of course, from whether they affect the outcome. People have the right to have a lawfully cast ballot counted.”
When a decision finally comes, it could be consequential.
Republicans are asking the U.S. Supreme Court to overturn the state Supreme Court’s deadline extension by saying it violates the U.S. Constitution’s provisions that give state legislatures the power to determine how congressional elections are run and how presidential electors are chosen.
If the court agrees with the interpretation that “legislatures” strictly means the legislature and does not refer to the state’s legislative process generally — shutting out even state courts — the implications would be enormous, Levitt said.
For example, what happens to governors’ ability to veto legislation that says how elections are run? Could the result be separate rules for presidential and congressional elections vs. all others? Who gets to decide what to do when state law is ambiguous?
“The broader legal fight here is a question that may have been a question of political strategy or convenience two months ago but has since become a broader issue, and it is a briar patch,” Levitt said. “It is a thorny, thorny issue if courts take any approach other than the status quo.”
After the Pennsylvania Supreme Court ordered the extension, Republican lawmakers who control the state legislature asked the U.S. Supreme Court to block that decision, as did the state GOP. The court, which then had one vacancy, was evenly divided, with the four more conservative justices saying they would have stayed the order.
After Republicans again asked the high court to take up the case, the justices declined to expedite the case just before Election Day, but said they could still rule afterward. After discussing the case Jan. 8, the court is likely to announce Jan. 11 whether it will accept or reject it. If rejected, the state Supreme Court order stands, and the Department of State will count the ballots.
One way or another, the 10,000 ballots will leave purgatory eventually.
The question is whether they will do so quietly — or change the landscape of American election law when they do.