Statue outside U.S. Supreme Court

Another Really Bizarre And Potentially Result-Altering Decision On The Election From The Supreme Court

On the face of it, looks like a defeat for Republican efforts to block some votes from being counted in Pennsylvania. But go a little deeper and it’s more than a little troubling.

Eric J Scholl
3 min readOct 28, 2020


Just about a week ago, Pennsylvania Republicans lost an attempt to overturn a decision by the Pennsylvania Supreme Court that allows ballots in that state to be counted if they are delivered by the Postal Service up to 3 days after Election Day, provided they’d been postmarked by Election Day.

The U.S. Supreme Court, which only had 8 members at the time, was split down the middle. Which resulted in the current rules staying in place. None of the Justices offered an explanation for why they decided as they did. But, Justices Thomas, Alito, Gorsuch and Kavanaugh made it clear they would’ve sided with Republicans and would’ve cut those ballots off.

So now, with a new Justice now on the Supreme Court, Republicans decided to take another run at it. Here’s where it gets tricky. They lost 5–3. With an explanation from Justice Alito that while the issue “calls out for response”:

I reluctantly conclude that there is simply not enough time at this late date to decide the question before the election.”

But — and this is a big, big but — Justice Alito added language in his statement that was joined by Justices Thomas and Gorsuch that cannot be seen as anything other than an invitation for Republicans to try yet again, after Election Day.

Writes Alito:

[T]he Court’s denial of the motion to expedite is not a denial of a request for this Court to order that ballots received after election day be segregated so that if the State Supreme Court’s decision is ultimately overturned, a targeted remedy will be available.”

And in case that didn’t make his point blatantly obvious, he concludes:

Nothing in the Court’s order today precludes Petitioner from applying to this Court for relief.”



Eric J Scholl

Peabody award winning journalist. Streaming media pioneer. Played @ CBGB back in the day. Editor-In-Chief "The Chaos Report"