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Law360 (September 24, 2020, 7:22 PM EDT) -- The Supreme Court of Pennsylvania said Thursday that it won't pause part of its ruling extending deadlines for mail-in ballots while Republicans appeal the decision to the U.S. Supreme Court.
The two-sentence order handed down by the 6-1 court majority denied petitions from the Republican Party of Pennsylvania and Republican leaders in the state legislature to hold off part of the justices' ruling that extended the deadline to receive ballots for the Nov. 3 election until Nov. 6.
In two separate petitions for a stay, the Republicans had focused on part of the ruling that said ballots without a legible postmark showing they had been mailed before the election-day deadline would still be presumed as having been mailed on time, arguing that the possibility of sneaking a ballot in after the deadline constituted an illegal extension of the federal law setting the day of the election.
Justice Sallie Updyke Mundy, the lone dissenter, said she would have granted a stay based on the U.S. Supreme Court taking up a similar case from Wisconsin. With the death of U.S. Supreme Court Justice Ruth Bader Ginsburg, elections cases could be the first tests of the eight-justice court — or one with a new justice rapidly installed before Election Day.
"The United States Supreme Court stayed a Wisconsin Supreme Court judgment and held that 'extending the date by which ballots may be cast by voters after the scheduled election day fundamentally alters the nature of the election,'" Justice Mundy wrote. "It is reasonable that the United States Supreme Court may view this court's presumption regarding ballots lacking a postmark or bearing an illegible postmark in the same light. As a result, I would grant a stay to preserve the public confidence in the integrity of the upcoming election."
The Pennsylvania justices' previous 4-3 ruling said the tight turnaround time in the state's new mail-in voting statute threatened to disenfranchise voters given the potential for delays in the U.S. Postal Service and the surge in demand for mail-in ballots amid the COVID-19 pandemic. To account for potential post office delays, the court allowed ballots to be counted if they were postmarked by 8 p.m. on Election Day and received by 5 p.m. on Nov. 6.
Republican lawmakers said the decision effectively created multiple election days if ballots could still somehow be mailed or submitted after Election Day without getting a legible postmark showing they had missed the mailing deadline, in violation of federal law that establishes a single day for casting votes.
While the state Republican party had only sought a stay on the parts of the ruling regarding missing or illegible postmarks, state Senate President Pro Tempore Joe Scarnati III, Senate Majority Leader Jake Corman, Speaker of the House Bryan Cutler and House Majority Leader Kerry Benninghoff wanted to halt the whole deadline extension, claiming the court had improperly usurped the legislative branch's power to set the time, place and manner of elections.
"Today's denial was entirely expected, but was a procedural step required as this case moves up to the U.S. Supreme Court," said Jason Torchinsky of Holtzman Vogel Josefiak Torchinsky PLLC, representing the state senators.
A representative of the Pennsylvania Department of State declined to comment Thursday, and counsel for the Republican party did not immediately respond to requests for comment Thursday.
The Republican Party of Pennsylvania is represented by Kathleen A. Gallagher and Russell D. Giancola of Porter Wright Morris & Arthur LLP, and John M. Gore and E. Stewart Crosland of Jones Day.
Scarnati and Corman are represented by Lawrence J. Tabas, Mathieu J. Shapiro and Richard Limburg of Obermayer Rebmann Maxwell & Hippel LLP, and Jason B. Torchinsky, Jonathan P. Lienhard, Shawn T. Sheehy, Gineen Bresso and Phillip M. Gordon of Holtzman Vogel Josefiak Torchinsky PLLC.
Cutler and Benninghoff are represented by Jake Evans, James E. DelBello and Hyun Yoon of Holland & Knight LLP, and Zachary M. Wallen of Chalmers & Adams LLC.
The Pennsylvania Department of State is represented by Daniel Brier, Richard Armezzani, John Dempsey and Donna Walsh of Myers Brier and Kelly LLP, J. Bart Delone, Nicole Boland, Howard Hopkirk, Sean Kirkpatrick, Stephen Moniak, Daniel Mullen, Keli Neary and Karen Romano of the state's attorney general's office, Susan Davies, Daniel Donovan and Michael Glick of Kirkland & Ellis LLP, Timothy Gates and Kathleen Kotula of the Pennsylvania Department of State, and Mary Giunta and Kenneth Joel of the Office of General Counsel.
The case is Pennsylvania Democratic Party et al. v. Boockvar et al., case number 133 MM 2020, before the Supreme Court of Pennsylvania.
--Editing by Adam LoBelia.
For a reprint of this article, please contact reprints@law360.com.
