Supreme Court allows Pennsylvania to count ballots three days after Election Day

Error message
In order to filter by the "in queue" property, you need to add the Entityqueue: Queue relationship.-
County NewsIn a 4-4 decision the U.S. Supreme Court allowed a Pennsylvania Supreme Court decision to stand that requires ballots received up to three days after the election to be counted. Only if a ballot is clearly postmarked after 8 p.m.Supreme Court allows Pennsylvania to count ballots three days after Election Day
-
County News Article
Supreme Court allows Pennsylvania to count ballots three days after Election Day
In a 4-4 decision the U.S. Supreme Court allowed a Pennsylvania Supreme Court decision to stand that requires ballots received up to three days after the election to be counted. Only if a ballot is clearly postmarked after 8 p.m. on Election Day will it not be counted if it arrives by 5 p.m. on Nov. 6.
Justices Thomas, Alito, Gorsuch and Kavanaugh voted against allowing the lower court decision to stand. In the event the Supreme Court ties, the lower court decision remains in place. As is typical in emergency cases, the Supreme Court issued no opinion in this case.
During the primary, Pennsylvania election boards received 1.8 million requests for mail ballots, due to COVID-19, when they were expecting between 80,000 - 100,000. Thousands weren’t mailed out until the night of the primary. The Secretary of State estimated 3 million ballots would be cast by mail in the general election. The last day to request a mail ballot in Pennsylvania is Oct. 27, 2020. A letter from the U.S. Postal Service General Counsel stated that Pennsylvania ballots requested near Oct. 27, 2020, might not be returned by Election Day.
Pennsylvania’s Election Code deadline for receiving mail and absentee ballots is 8 p.m. on Election Day. However, the Pennsylvania Constitution requires that “all aspects of the electoral process, to the greatest degree possible, be kept open and unrestricted to the voters of our Commonwealth, and, also, conducted in a manner which guarantees, to the greatest degree possible, a voter’s right to equal participation in the electoral process for the selection of his or her representatives in government.” Relying on this language in the Pennsylvania Constitution, the Pennsylvania Supreme Court extended the deadline to count ballots by three days to “reduce voter disenfranchisement.”
The Senate Republican Caucus and the Republican Party of Pennsylvania argued the Supreme Court should review the Pennsylvania Supreme Court decision on an emergency basis and prevent it from going into effect. They argued that the decision violated federal law which establishes “the Tuesday next after the 1st Monday in November” as a single Federal Election Day. They also argued that the Pennsylvania Supreme Court violated the U.S. Constitution’s Elections Clause “by seizing the authority to set the times, places and manner of federal elections from the state legislature.”
The Secretary of State argued the U.S. Supreme Court shouldn’t freeze the Pennsylvania Supreme Court decision. She asserted the U.S. Supreme Court had no jurisdiction to hear this case because it only involved the interpretation of state law. According to her brief: “In an effort to convince this Court to intrude upon Pennsylvania’s sovereignty, Applicants engage in a slight of hand. They attempt to convert a case that hinges upon state law into one that is about the Electors and Elections Clauses of the United States Constitution and federal law. These Federal provisions have no bearing on the present case.”
In a 4-4 decision the U.S.2020-10-20County News Article2020-10-20
In a 4-4 decision the U.S. Supreme Court allowed a Pennsylvania Supreme Court decision to stand that requires ballots received up to three days after the election to be counted. Only if a ballot is clearly postmarked after 8 p.m. on Election Day will it not be counted if it arrives by 5 p.m. on Nov. 6.
Justices Thomas, Alito, Gorsuch and Kavanaugh voted against allowing the lower court decision to stand. In the event the Supreme Court ties, the lower court decision remains in place. As is typical in emergency cases, the Supreme Court issued no opinion in this case.
During the primary, Pennsylvania election boards received 1.8 million requests for mail ballots, due to COVID-19, when they were expecting between 80,000 - 100,000. Thousands weren’t mailed out until the night of the primary. The Secretary of State estimated 3 million ballots would be cast by mail in the general election. The last day to request a mail ballot in Pennsylvania is Oct. 27, 2020. A letter from the U.S. Postal Service General Counsel stated that Pennsylvania ballots requested near Oct. 27, 2020, might not be returned by Election Day.
Pennsylvania’s Election Code deadline for receiving mail and absentee ballots is 8 p.m. on Election Day. However, the Pennsylvania Constitution requires that “all aspects of the electoral process, to the greatest degree possible, be kept open and unrestricted to the voters of our Commonwealth, and, also, conducted in a manner which guarantees, to the greatest degree possible, a voter’s right to equal participation in the electoral process for the selection of his or her representatives in government.” Relying on this language in the Pennsylvania Constitution, the Pennsylvania Supreme Court extended the deadline to count ballots by three days to “reduce voter disenfranchisement.”
The Senate Republican Caucus and the Republican Party of Pennsylvania argued the Supreme Court should review the Pennsylvania Supreme Court decision on an emergency basis and prevent it from going into effect. They argued that the decision violated federal law which establishes “the Tuesday next after the 1st Monday in November” as a single Federal Election Day. They also argued that the Pennsylvania Supreme Court violated the U.S. Constitution’s Elections Clause “by seizing the authority to set the times, places and manner of federal elections from the state legislature.”
The Secretary of State argued the U.S. Supreme Court shouldn’t freeze the Pennsylvania Supreme Court decision. She asserted the U.S. Supreme Court had no jurisdiction to hear this case because it only involved the interpretation of state law. According to her brief: “In an effort to convince this Court to intrude upon Pennsylvania’s sovereignty, Applicants engage in a slight of hand. They attempt to convert a case that hinges upon state law into one that is about the Electors and Elections Clauses of the United States Constitution and federal law. These Federal provisions have no bearing on the present case.”

About Lisa Soronen (Full Bio)
Executive Director, State and Local Legal Center
Lisa Soronen is the Executive Director of the State and Local Legal Center (SLLC). Prior to joining the SLLC, Ms. Soronen worked for the National School Boards Association, the Wisconsin Association of School Boards, and clerked for the Wisconsin Court of Appeals.More from Lisa Soronen
-
County News
County News Hot Topics – Elections
Every Election Day, counties nationwide oversee over 100,000 polling locations and over 630,000 poll workers. Each election cycle, counties take great care ensure ballots are securely cast and counted accurately, amid operational and outside challenges. -
Reports & Toolkits
Evolving Elections: How State Legislation Will Impact the County Role in Election Administration
Elections in the United States are administered in a highly decentralized process through which each state shapes its own election laws. In turn, states shape the role counties play in the months and weeks leading up to Election Day. -
Reports & Toolkits
The County Role in Elections: How Counties Administer Secure and Accurate Elections
Jump to Section The County Role in Elections Counties and Election Security -
Blog
NACo joins with local government associations to file Amicus brief in historic Supreme Court elections case
On December 7, the U.S. Supreme Court will hear oral arguments for Moore v. Harper, a landmark case examining whether state legislatures have exclusive power to set rules regarding federal elections. -
Webinar
How Will Upcoming Supreme Court Action Impact Local Elections Administration?
Oct. 27, 2022 , 3:00 pm – 4:00 pmThis fall, the U.S. Supreme Court is set to hear arguments in Moore v. Harper, a landmark case asking the court to decide whether state legislatures alone have the authority to oversee federal elections without interference by state judicial or executive branches. -
County News
Ranked choice voting remains a rarity in county-level races
Ranked-choice voting has not caught on in county-level elections the way it has on the city, state and federal levels.
Contact
-
Executive Director, State and Local Legal Center
Related Resources
-
County News
County News Hot Topics – Elections
Every Election Day, counties nationwide oversee over 100,000 polling locations and over 630,000 poll workers. Each election cycle, counties take great care ensure ballots are securely cast and counted accurately, amid operational and outside challenges. -
Blog
NACo joins with local government associations to file Amicus brief in historic Supreme Court elections case
On December 7, the U.S. Supreme Court will hear oral arguments for Moore v. Harper, a landmark case examining whether state legislatures have exclusive power to set rules regarding federal elections. -
County News
Ranked choice voting remains a rarity in county-level races
Ranked-choice voting has not caught on in county-level elections the way it has on the city, state and federal levels.
-
Reports & Toolkits
Evolving Elections: How State Legislation Will Impact the County Role in Election Administration
Elections in the United States are administered in a highly decentralized process through which each state shapes its own election laws. In turn, states shape the role counties play in the months and weeks leading up to Election Day. -
Reports & Toolkits
The County Role in Elections: How Counties Administer Secure and Accurate Elections
Jump to Section The County Role in Elections Counties and Election Security -
Reports & Toolkits
Legislative Analysis for Counties: American Confidence in Elections Act
Jump to Section Key Highlights Overview of Provisions Election Administration