The Supreme Court is not going to enter the Pennsylvania election law dispute. In Republican Party of Pennsylvania v. Boockvar the Court denied two stay applications filed by Pennsylvania Republicans pending an appeal of a Pennsylvania Supreme Court decision requiring the counting of mail-in ballots received within three day of Election Day, unless they were postmarked after Election Day. (In other words, ballots received by that deadline without a postmark would be counted.)
The vote in Boockvar was 4-4. Justices Thomas, Alito, Gorsuch and Kavanaugh would have granted the stay. The Chief Justice and Justices Breyer, Sotomayor and Kagan would not have. There were no opinions. (More on the substantive issues in the case can be found here.)
Despite the lack of opinions, the result makes some sense, as the justices split along predictable ideological lines. The conservative justices opposed allowing courts rewrite election laws. The liberal justices were happy to leave in place a state court decision making it easier to vote. And the Chief? He joined the liberals in this case because he does not like judicial intervention or the unnecessary granting of stays (an aspect of his jurisprudence I discussed here).
This outcome does not mean the Chief Justice will turn away appeals of equivalent decisions from lower federal courts. A state court decision, such as was at issue here, could be handled at the state level. An equivalent decision from a lower federal court, however, would represent intrusion by federal courts of the sort the Chief Justice does not like, and would also implicate the Purcell principle, which counsels against federal court intervention so close to election day. So I suspect the fact that this case presented a stay pending appeal from a state supreme court is why the Court split 4-4, instead of 5-3.
This 4-4 split is likely to increase the calls for Amy Coney Barrett to recuse from election disputes this year, should she be confirmed prior to election day. In a Washington Post op-ed, former judge Michael Luttig argued her recusal could be required by Caperton v. Massey. Ed Whelan responded to the Luttig op-ed on NRO’s Bench Memos.
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