The Supreme Court announced Wednesday it would not fast-track a dispute over mail-in ballots in Pennsylvania, a critical swing state, days before the Nov. 3 election, setting up a likely legal battle post-election for the state’s 20 electoral votes.
Justice Amy Coney Barrett did not participate in the high court’s denial of the Republican Party’s request that the justices expedite their legal challenge over a state law allowing mail-in ballots to be counted up to three days after Election Day.
The case first came to the high court earlier this year, and the justices split 4-4 on the issue earlier this month, leaving the Pennsylvania Supreme Court ruling in place, which allowed the law to stand and votes to be counted beyond Nov. 3.
The state deadline for counting ballots runs through Nov. 6.
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 had been nominated and confirmed, the Republican Party had renewed its challenge, sending the case back to the high court but to no avail.
Liberal groups and progressive legal scholars had 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.
They were particularly worried about the Pennsylvania challenge since it had been renewed during Justice Barrett’s confirmation process.
A Pennsylvania county Board of Elections had filed a motion for the newly sworn-in justice to recuse herself.
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.”
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.
Though Justice Barrett did not participate in the court’s decision to reject the Republican Party’s request to expedite the case Wednesday, she has not officially recused herself from the dispute, which could return to the high court after Election Day.
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 an election case just because the president has made statements about the legal conflict, noting that his comments do not speak to her objectivity.
Justice Samuel A. Alito Jr., joined by Justice Clarence Thomas and Justice Neil M. Gorsuch, authored an opinion, saying the court’s handling of the Pennsylvania dispute “needlessly created conditions that could lead to serious post-election problems.”
Justice Alito said the high court should still review Pennsylvania’s Supreme Court ruling, but acknowledged “there is simply not enough time at this late date to decide the question before the election.”