Supreme Court Justice Samuel Alito ordered Pennsylvania on Friday to segregate and secure all votes received after 8 p.m. on Election Day. In addition, if those votes are counted, they must be tabulated separately from votes received before the deadline.
“All county boards of election are hereby ordered, pending further order of the Court, to comply with the… guidance provided by the Secretary of the Commonwealth on October 28 and November 1,” Associate Supreme Court Justice Samuel Alito wrote in the order. The guidance, which was issued by the Pennsylvania Secretary of the Commonwealth, declared that 1) all ballots received by mail after 8:00 p.m. on November 3 be segregated and kept “in a secure, safe and sealed container separate from other voted ballots,” and (2) that all such ballots, if counted, be counted separately.
“Until today, this Court was not informed that the guidance issued on October 28, which had an important bearing on the question whether to order special treatment of the ballots in question, had been modified,” Alito said.
In an 11-page emergency application, the Republican Party of Pennsylvania asked the Court to order county boards of election to segregate the late-arriving ballot. The guidance from the Secretary of the Commonwealth is nonbinding, and, in fact, the Pennsylvania GOP found that while 42 counties have indicated they are segregating the ballots, 25 have not responded to inquiries, so it’s not clear whether they are doing so or not.
Alito ordered the non-responsive boards to respond to the inquiry by 2 p.m. Saturday. He further ordered that ballots not received by Election Day not be included in any official total counts.
It’s important that the votes be segregated because of a dispute that is likely to be heard by the federal Supreme Court in the coming days. The Pennsylvania Supreme Court, citing the COVID pandemic, ordered the state to extend the deadline to receive ballots by thee days, circumventing a state law mandating that all ballots must be received by 8 p.m. on Election Day. The U.S. Supreme Court refused to take up the Pennsylvania GOP’s request to roll back the overreach by the state Supreme Court prior to the election, which resulted in utter mayhem over the last few days.
On election night, President Trump led in Pennsylvania by 600,000 votes. As the vote-counting progressed, and votes—some of them received after Election Day in violation of state law—continued to roll in, Trump’s lead evaporated. Former Vice President Joe Biden currently leads in Pennsylvania by more than 27,000 votes. It’s not known how many of the votes received after Election Day are included in the official total.
Alito’s order signals that the Court plans to take up the case and will, hopefully, resolve once and for all whether the Pennsylvania Supreme Court was within its rights to essentially change state law (it wasn’t).
You can read the order below.
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