The Supreme Court on Monday night ruled in favor of allowing ballots cast in Pennsylvania to be counted up to three days after the polls close next month, denying a Republican attempt to have the late counting stopped.
The eight justices – they are awaiting confirmation of Ruth Bader Ginsburg‘s replacement – found themselves tied.
As a result, the Republican attempt to stop the new voting rules was not successful.
The four conservative justices – Brett Kavanaugh, Neil Gorsuch, Samuel Alito and Clarence Thomas – all voted in favor of stopping the count.
The three liberal justices – Elena Kagan, Stephen Breyer and Sonia Sotomayor – all voted to allow Pennsylvania to proceed as planned.
Chief Justice John Roberts sided with the liberals, and caused a four:four split.
A five:three decision was necessary for the Republican appeal to have been granted. When there is a tie vote, the decision of the lower court stands.
The eight justices on the Supreme Court voted on Monday 4-4 to prevent Republicans repealing a special voting measure which would allow ballots cast in Pennsylvania to still be counted even if they arrived three days after election day. From top left: Neil Gorsuch (voted for repealing the new three-day limit); Sonia Sotomayor (against); Elena Kagan (against); Brett Kavanaugh (for). From bottom left: Stephen Breyer (for); Clarence Thomsa (against); Chief Justice John Roberts (for); Ruth Bader Ginsburg; Samuel Alito (for)
The case was just the latest example of Chief Justice Roberts siding with the liberals.
In 2012 the 65-year-old, appointed by George W. Bush, voted to uphold Obamacare.
He has voted to strike down a state law that would diminish access to abortion, and voted to protect the Dreamers from deportation. He also voted to prevent a citizenship question being added to the census.
Legal experts describe Roberts as the most influential justice on the court, who is almost always in the majority.
They debate whether he can be truly considered a liberal, however; most settle on defining him as a moderate, rather than a true liberal.
The situation on Monday was born out of a decision by Pennsylvania to amend the usual voting rules, in a nod to the pandemic.
The state electoral bodies agreed that voters could turn in ballots via a drop box, in addition to using the U.S. Postal Service, and that their ballots would still be counted even if they were returned up to three days after election day.
They also blocked a Republican effort to allow partisan poll watchers to be stationed in counties where they do not live.
Pennsylvania’s Republican legislators and the local party asked the U.S. Supreme Court to weigh in only on one of the three amendments – the ruling pushing back the deadline for mail ballots to arrive.
The state court said the ballots must be counted if they are postmarked by November 3, even if no postmark is visible.
Republicans argued the case all the way to the Supreme Court, which ruled on Monday.
Pennsylvania’s plan will allow votes to be counted even if they arrive on November 6
Special ballot boxes are another part of the Pennsylvania agreement for voting this year
The case has taken on an added urgency given the vital role Pennsylvania, a swing state with 20 electoral college votes, has taken during this election.
In 2016 Trump win the state by 0.7 per cent, with Pennsylvania one of three ‘blue wall’ states – the other two being Michigan and Wisconsin – that he won on his way to the White House.
The website FiveThirtyEight currently gives Biden an 87 in 100 chance of winning Pennsylvania, versus 13 in 100 for Trump – meaning that the Republicans have a fight on their hands.
‘In a year where there is a very real possibility that the final presidential election result hinges on Pennsylvania, the new rules imposed by the decision of the Supreme Court of Pennsylvania (a body elected in partisan elections) could destroy the American public’s confidence in the electoral system as a whole,’ said the stay request filed by the Republican leaders.
Josh Shapiro, the Democrat attorney general of Pennsylvania, argued that the case was being fought so that ‘all aspects of the electoral process in Pennsylvania be open and unrestricted so as not to disenfranchise Pennsylvania voters’.
He wrote: ‘The Pennsylvania Supreme Court’s decision protected that right and brought much needed clarity to the exigent circumstances surrounding a global pandemic.
‘In doing so, that court ensured that Pennsylvanians would not be forced to choose between exercising their right to vote and protecting their health.’
On Monday night Shapiro was celebrating.
‘Huge win for Pennsylvania,’ he tweeted.
‘Trump’s losing streak continues, this time in SCOTUS. Now let’s have an election.’
Pete Buttigieg, the former presidential candidate turned Biden adviser, had a warning, however.
‘Good news in PA, but troubling to think this was a 4-4 decision,’ he said.
‘It’s a reminder of the stakes.’
Donald Trump’s Supreme Court struggles: a summary of the most famous cases
* October 19 – Republican Party of Pennsylvania v Boockvar
The court ruled against a Republican appeal which tried to prevent Pennsylvania from allowing mail-in ballots to be still counted up to three days after election day. The court was split 4-3, but Chief Justice Roberts sided with his liberal colleagues and ensured the Republican appeal was denied.
* October 8 – Lamm v Bullock
The Supreme Court rejected a request from Republicans in Montana to block a plan that will allow county election officials to choose whether to send mail-in ballots to all registered voters in the state on October 9.
* July 9 – Trump v Vance:
Cy Vance, the Manhattan district attorney, is seeking access to Trump’s financial records. By a vote of 7-2, the justices rejected the president’s claim that he is always immune from state grand jury proceedings while he is in office.
* June 18 – Dept of Homeland Security v Regents of the University of California
With a 5-4 vote, the Supreme Court blocked the Trump administration’s plan to dismantle an Obama-era program that has protected 700,000 so-called ‘Dreamers’ – migrants brought into the United States as children – from deportation. Chief Justice Roberts wrote the opinion.
* June 27, 2019 – Dept of Commerce v New York
The court voted 5-4 to prevent a question about immigration status from being added to the 2020 census. Critics argued that the question was designed to scare immigrants into not filling out the form, and thus reducing the funding that would be targeted to Democrat-leaning, migrant-heavy areas of the country. Chief Justice Roberts cast the deciding vote.