Written By: Charlotte Mac Kay
Over 50 million American voters plan to or have already voted early for the 2020 Presidential election via an absentee ballot. At over 50% of the entire voting population of the last Presidential election (2016), the surplus of absentee voters places a lot of the weight for the decisive 2020 election between candidates Donald Trump and Joe Biden on mail-in ballots. A particularly contentious issue is the validity of mail-in ballots turned in late and whether ballots received post-Nov. 3 will be counted toward the election. In late October, the issue was taken to the Supreme Court in the case of several states, with differing results.
The Supreme Court first dealt with the issue of late mail-in ballots in the case of the State of Pennsylvania, a key and highly contentious state for the election. Pennsylvania requested a three-day extension of ballots in order that all ballots (which the state allowed to be requested as soon as a week before the election) could be received and counted. An initial hearing by the Supreme Court on Oct. 19 decided to maintain Pennsylvania’s three-day extension in a 4-4 count, allowing ballots received by Nov. 6 to be counted toward the election. However, the Pennsylvanian Republic Party quickly pushed for a revote following the confirmation of Amy Coney Barret to the court on Oct. 28, whose confirmation pushed the ideological balances of the high court further to the right.
In a revote on Oct. 28, the Supreme Court re-voted and confirmed the previous decision, with a 5-3 vote supporting Pennsylvania’s three day extension. Newly confirmed Barret abstained from voting and was not a part of the deliberations, “because of the need for a prompt resolution of it and because she has not had time to fully review the parties’ filings,” according to Kathleen Arberg, a state spokeswoman. The currently unsigned order allows the state of Pennsylvania to count all ballots received before a November 6 cutoff. However, all ballots received after Nov. 3 will be sorted separately, allowing for a potential reconsideration of the vote counts depending on the events of the election.
Since Pennsylvania, the Supreme Court has voted on the legalities of post-Nov. 3 ballots in several other key electoral states, including North Carolina and Wisconsin. In North Carolina, the court decided to maintain the state’s nine-day extension for absentee ballots, denying a petition from the state Republican party. The 5-3 decision allows North Carolina to count all ballots received before Nov. 12.
The court decided to maintain the state law in Wisconsin as well, rejecting a petition by the democratic party to allow all ballots sent to the election office before November 3 to be counted, even if they arrived after the election day. The once again 5-3 vote means that, in Wisconsin, ballots must be received by the election committee on Nov. 3 in order to be counted for the election.
The prevailing theme for the currently overseen cases has been to maintain the state laws. Justice Neil Gorsuch, who voted in favor of the pre-set state laws in all three circumstances, explains that, “The Constitution provides that state legislatures — not federal judges, not state judges, not state governors, not other state officials — bear primary responsibility for setting election rules.” Experts warn, however, that the rulings on counting ballots may be reconsidered after the election date, especially if the count is close in key swing states.