PHILADELPHIA (KYW Newsradio) — The U.S. Supreme Court could be considering taking up the case of whether or not Pennsylvania’s high court overstepped when it allowed the mail-in ballot deadline to be extended.
Lawmakers passed Act 77 in Pennsylvania last year without knowing a pandemic was around the corner.
Secretary of State Kathy Boockvar extended the timeline for receipt of mail-in ballots from Election Day to the Friday following. Republicans in the state called foul and sued, and it has now made its way to the U.S. Supreme Court.
Last week, Justice Samuel Alito ordered any mail-in ballots coming in after Election Day to be separated from the rest. However, some counties have reported their segregated ballots make up as few as one-fifth of a percent (.02%) of the total votes, which may not impact the election.
“The margin of victory is too big,” said Kermit Roosevelt, a constitutional law professor with the University of Pennsylvania and President Theodore Roosevelt’s great-great-grandson.
“I think the Supreme Court will not want to spend institutional capital and appear political in the way that a partisan decision would, when it’s not actually getting any benefit,” explained Roosevelt. “The real question is whether there’s any room for state courts or whether this has to be done solely by the legislature. I think the better view of it is that state courts can play the role they traditionally do in interpreting state law and in accommodating that into the state constitution, but again, the more important point is it does not affect the outcome in Pennsylvania.”
A group of Republican attorneys general filed amicus briefs in the matter, urging the high court to take the case.
"The actions by the Pennsylvania Supreme Court are one of the most breathtaking abuses of judicial authority that I have seen in my four-plus years as Attorney General," Oklahoma Attorney General Mike Hunter said.
“The Supreme Court probably doesn’t want to weigh in on such a politically charged dispute unless it has to, and it certainly doesn’t have to, or at least unless it is going to do something meaningful,” said Roosevelt. “And if it’s going to issue a decision that doesn't change the outcome, there are arguments that it actually doesn’t have the power to do that, because the case is moot and it doesn’t present a case or controversy as the Constitution requires”.
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And, Roosevelt says, even with a majority-conservative court, the decision might not go President Donald Trump’s way.
“Trump seems to think that he’s appointed people who owe him and will do him favors, but I ... strongly doubt that any of the justices think about it in that transactional way,” Roosevelt said.
In a statement, a spokesperson for Pennsylvania Attorney General Josh Shapiro said the state’s election was “fair and secure.”
“Many of the claims against the Commonwealth have already been dismissed, and repeating these false attacks is reckless. No active lawsuit even alleges, and no evidence presented so far has shown, widespread problems,” the statement said.