The Supreme Court declined to expedite a Republican challenge to the extended ballot-receipt deadline in Pennsylvania, but the justices are leaving the option of weighing in on the case after Election Day.
Justice Amy Coney Barrett, who joined the court on Tuesday, did not take part in the deliberations in this round of the litigation, which involves the proper role of state courts in changes to procedures in a federal election.
A statement from the court’s public information office Wednesday afternoon said Barrett did not participate “because of the need for a prompt resolution of it and because she has not had time to fully review the parties’ filings,” not because she formally recused herself.
That means Barrett, who was nominated by President Donald Trump and confirmed earlier this week, could still rule in the Pennsylvania case and other election-related legal fights. During her confirmation hearings earlier this month, Democrats pressed Barrett to agree to recuse herself from any election litigation that would come before the court this year, but she demurred.
Her vote in the case could be pivotal, because just last week the Supreme Court deadlocked, 4-4, on the Republicans’ request for an emergency stay that would have blocked the Pennsylvania state Supreme Court’s decision allowing ballots that arrive up to three days after election day to be counted if they are postmarked by election day.
No justice publicly dissented from the high court’s decision not to take up the Pennsylvania dispute in advance of next Tuesday’s election.
In a statement accompanying the denial, Justice Samuel Alito wrote that while “it would be highly desirable to issue a ruling” before the election, he “reluctantly conclude[s] that there is simply not enough time at this late date.” His statement, joined by Justices Clarence Thomas and Neil Gorsuch, indicates that they would likely overturn the ballot return extension in the crucial battleground state.
The court noted that the secretary of the commonwealth issued guidance to local election officials earlier on Wednesday to segregate ballots received after the close of polls but before the Nov. 6 deadline, cracking the door for a potential post-election decision.