John Roberts sides with liberal justices on Pennsylvania ballots, election could get ‘really ugly’ if close

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In a ruling emphasizing the importance of seating another constitutional originalist on the nation’s highest court, Chief Justice John Roberts sided with the Supreme Court’s left-wing in allowing Pennsylvania to count ballots three days after the election, including those without postmarks.

The 4-4 ruling leaves in place a Pennsylvania Supreme Court decision requiring state election officials to receive and count ballots three days after Nov. 3, including ballots with no clear postmark, provided there is no evidence they were mailed after Election Day.

It’s not clear how election officials would know whether ballots were mailed after Nov. 3 if they are not required to bear a postmark.

The Pennsylvania Supreme Court ruling runs counter to state law, which required all mail-in ballots to bear a postmark and to be received prior to election day.

The decision is a clear victory for Democrats; Republicans in the state sued to block a lower state court’s earlier ruling permitting the changes in a key battleground state that President Donald Trump won in 2016.

The Trump campaign also opposed the change, saying it violates federal election law which sets Election Day as the first Tuesday after the first Monday in November. The campaign also argued that changing that date can only be done by lawmakers, not courts.

Lawrence Tabas, chairman of the Pennsylvania Republican Party, said the U.S. Supreme Court’s ruling — and Roberts’ most recent defection to the court’s liberal wing — “only underscores the importance of having a full Supreme Court as soon as possible.”

The passing of Justice Ruth Bader Ginsberg last month left the court with eight members instead of its traditional nine, leading President Donald Trump to quickly nominate Judge Amy Coney Barrett.

With her confirmation hearings complete, the GOP-controlled Senate is preparing to vote later this month on whether to confirm her, which is expected. In fact, the Pennsylvania election decision may even strengthen Republican resolve in the Senate.

“To be clear, the Supreme Court decided not to grant a stay — which does not mean the actions of the Pennsylvania Supreme Court would withstand a legal challenge to their judicial overreach should the court hear the case,” Tabas added, according to The Associated Press.

“We are disappointed that the court declined to confront the important issues raised in our motion,” said Republican National Committee national press secretary Mandi Merritt said. “The Constitution delegates these issues to elected state legislatures rather than judges for a reason.”

Democrats, of course, were pleased with the decision.

“This is a significant victory for Pennsylvania voters,” state Democratic Party Chairwoman Nancy Patton Mills said in a statement.

“With nearly a million votes already cast in Pennsylvania, we support the court’s decision not to meddle in our already-working system,” Pennsylvania’s attorney general, Democrat Josh Shapiro, added.

Liberals who dominate the Pennsylvania high court cited warnings from U.S. Postal Service officials who said a surge of mail-in ballots this year, due in large part to concerns about voting in person because of the COVID-19 pandemic, are likely to lead to delays.

That said, others were concerned that arbitrary cancellation of state election laws that heretofore had never been challenged as illegal or unconstitutional could lead to other changes in the future, such as reducing the age or residency requirements for voting.

In opposition, Justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Clarence Thomas ruled to uphold state law requiring postmarked ballots be due by Election Day.

The nation’s high court is also considering a similar case from Wisconsin, but in that instance, Democrats want rulings by state courts upholding hard-and-fast ballot rules and deadlines overturned.

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Jon Dougherty

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