Republicans seek to stay Pa. Supreme Court decision on ballot drop boxes and mail-in ballots

Top Republicans in Harrisburg have asked the state Supreme Court to stay part of its order allowing the use of ballot drop boxes and granting a three-day extension to count mail-in ballots while they appeal the ruling to the U.S. Supreme Court.

In an application filed Tuesday, the Republican lawmakers accused the state Supreme Court of violating federal election law by extending the deadline to accept late ballots. That basically creates multiple election days, which “raises the same concerns of fraud, undue advantage and nonuniformity which led to the creation of a Federal Election Day,” the legislators’ attorneys wrote.

The state Supreme Court, in a 5-2 decision Sept. 17, granted requests from the Democratic Party to allow three additional days or until Nov. 6 for elections departments to count mail-in ballots — including ones with illegible postmarks.

It also granted a request to use ballot drop boxes and satellite elections offices, which is not at issue in the motion to stay.

The Republicans — including Senate President Pro Tempore Joseph B. Scarnati III, Senate Majority Leader Jake Corman, House Speaker Bryan Cutler and House Majority Leader Kerry Benninghoff — argued that authority to regulate the times and places of elections rests with the General Assembly and can be altered only by Congress, not the court.

“The General Assembly has not delegated authority to alter these regulations to the Pennsylvania judiciary, yet this court’s decision fundamentally changes the policy decisions inherent in the General Assembly’s duly enacted election laws,” the legislators’ attorneys wrote.

“This court has substituted its will for the will of the General Assembly, and this substitution usurps the authority vested in the General Assembly by the Elections Clause,” the legislators’ attorneys added.

In their filing, the Republican legislators argued there is “at minimum, a reasonable probability that the United States Supreme Court” will take their appeal.

They called the idea of ballots with no legible postmark being counted — combined with the use of “unmanned, unsecured drop boxes” — troubling.

“Pennsylvania’s General Assembly has done everything it can to establish a voting regime that is easy and accessible, even in the midst of a pandemic,” the legislators’ attorneys wrote.

The attorneys made a distinction from early voting procedures that have been upheld by the courts, saying that in those cases, “the final selection (of candidates) is not made before the federal election day.”

The attorneys argued that a stay would prevent harm to the public and to the state.

In its own motion to stay the same decision, the Republican Party of Pennsylvania wrote that the state Supreme Court’s order “creates a serious likelihood that Pennsylvania’s imminent general election will be tainted by votes that were illegally cast or mailed after Election Day.”

In a related federal case, Donald J. Trump for President v. Secretary of the Commonwealth Kathy Boockvar, U.S. District Judge J. Nicholas Ranjan said Wednesday that he will allow the plaintiffs to amend their complaint. It challenges many of the same items at issue in the state Supreme Court case and argues the election will be less secure because of the changes put in place.

Ranjan initially stayed the case pending the outcome of the one before the Pennsylvania Supreme Court.

In his order Wednesday, Ranjan ordered both sides to file motions for summary judgment and their replies by Oct. 5. He said he will hold a hearing on the issues — only if they can’t be decided based on the filings — on Oct. 13 and 14.