- The Washington Times - Wednesday, October 28, 2020

A Pennsylvania county Board of Elections filed a motion for Supreme Court Justice Amy Coney Barrett to recuse herself in an election-related dispute the court will be weighing just days ahead of the Nov. 3 election.

The Luzerne County Board of Elections made the filing at the Supreme Court on Tuesday, arguing that the newly seated justice is compelled to recuse since her “impartiality might reasonably be questioned.”

Liberal groups and progressive legal scholars have argued that Justice Barrett should not participate in any election-related legal battle since she was appointed by President Trump, who has said that he wants the justices to stop mail-in ballot conflicts.

During her confirmation hearing earlier this month, Justice Barrett told senators she did not promise the president — or any executive branch official — to rule a certain way in any case that may come before her on the high court.

“All of this raises a terrible ‘appearance’ problem which can only engulf the Supreme Court in a political stew with poisonous consequences for the independence and perceived integrity of the judiciary,” said the motion for recusal.

The Republican Party is challenging a Pennsylvania law that’s permitting mail-in ballots to be counted through Friday, Nov. 6, three days after Election Day.

The case first came to the high court earlier this month, where the justices split 4-4 on the issue, leaving the Pennsylvania Supreme Court ruling in place, which allowed the law to stand and votes to be counted beyond Nov. 3.

Chief Justice John G. Roberts Jr., a Bush-appointee, sided with the three Democratic-appointed justices to leave the extension intact.

But since Justice Barrett has been nominated and confirmed, the Republican Party has renewed its challenge and the case is back at the high court.

The justices are likely to weigh the issue later this week.

Supreme Court justices do not have strict recusal rules like judges follow in the lower courts, but high court justices have recused themselves in the past when they have known a party involved in a case.

Being appointed by a president has generally not qualified as a reason for warranting recusal.

Court watchers have split on the issue pertaining to Justice Barrett.

Curt Levey, president of the Committee for Justice, told The Washington Times there isn’t a “good reason” for her to step aside from hearing a case just because the president has made statements about the legal conflict, noting his comments do not go to her objectivity.

“There is no good argument for recusal,” Mr. Levey said.

Meanwhile, Karen Hobert Flynn, president of Common Cause, claims the timing of Justice Barrett’s nomination and confirmation suggests she was placed on the court by Mr. Trump to be a tie-breaking vote in his favor for the election.

“Any participation would put an asterisk on the resulting decision. Justice Barrett has no business deciding any case related to this election, and she must recuse herself,” Ms. Flynn said.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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