I’m going to start with the most important piece of information in this column: If you are voting by mail, VOTE NOW AND DO NOT WAIT.
Now here’s the explanation why. On Monday night, the Supreme Court let stand a Pennsylvania ruling that allows ballots to be counted that are postmarked election day (November 3rd) but not received for up to three days later (through November 6th). The Pennsylvania Supreme Court had interpreted the state election law to allow those votes to count, sending voters the message that they can mail their ballots up to the end of election day.
So if that ruling stands, why am I telling everyone in the country who votes by mail, not just Pennsylvanians, to VOTE NOW AND DO NOT WAIT? Because the Supreme Court decision last night was a 4-4 vote. Chief Justice Roberts joined the Court’s three liberals in voting not to re-visit the Pennsylvania case (which, given the posture of this appeal and only eight Justices being on the Court now, is enough to deny the appeal for now). However, the other four conservative Justices on the Court dissented, which indicates that they would have stopped Pennsylvania from counting these votes.
The reason they dissented is a combination of a little bit of guesswork and a whole lot of ridiculous legal theory. It’s guesswork because, in an order like this, they don’t have to (and did not) explain their votes. But, we can be pretty confident that they adopted a cockamamie theory that the Constitution doesn’t allow the Pennsylvania Supreme Court to be the final decision maker about Pennsylvania law when it comes to elections. Rather, because the Constitution says state legislatures must determine state election law, the state courts can go too far in interpreting that law sometimes.
Most election law experts think this legal theory is ridiculous. However, four U.S. Supreme Court Justices apparently disagree, as they indicated yesterday. And they are about to get a fifth Justice on the Court who will in all likelihood join them. Amy Coney Barrett is poised to join the Court as early as next week. If everything goes as smoothly as it appears it will with her confirmation, Senator Mitch McConnell hopes to have her confirmed as early as Monday, October 26th. Whether it’s that day or later in the week, Barrett will most likely join the Court before Election Day.
After Election Day, we are very likely to see President Trump and the Republican Party re-open this case or file new challenges to counting mail-in ballots in Pennsylvania. The decision from the Supreme Court yesterday doesn’t foreclose these new challenges. And these challenges will make their way to a Supreme Court that now has Justice Barrett as its newest member. Which means that Justice Barrett will likely flip the four dissenting Justices into members of a five-Justice majority to stop Pennsylvania from counting these last-minute mail-in ballots. If that happens, ballots mailed on Election Day in Pennsylvania might not be counted in this election.
And it’s not just Pennsylvania with this concern. Republicans are likely to challenge other states that have similar rules. These challenges would eventually make their way to a Supreme Court with six conservative Republicans, a Court that even without Barrett on it has been hostile to voting rights.
The danger here cannot be understated: This new Supreme Court is very likely going to be eager to stop counting votes that are in any way out of the ordinary. Barring some black swan event stopping Barrett’s nomination from going through, the only way you can ensure that this doesn’t happen is to do one of two things: 1) vote in person on election day or 2) if you are voting by mail, VOTE NOW AND DO NOT WAIT.
If you wait to mail your ballot until Election Day, you are playing with fire.
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