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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.

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.”

Here’s full text of his statement.

So excuse me, but may I say WTF? So you’re going to decide it after the election?

And “relief” from what? Losing?

Now what’ll happen is timely votes that just happen to be late arriving will be separated out by the state, which in itself is not a bad thing. Just in case the U.S. Supreme Court decides to override the Pennsylvania Supreme Court after Election Day! Which doesn’t mean they will. But why would Justice Alito put that on the table if at least he and some of the other Justices didn’t want to do just that?

New Justice Amy Coney Barrett did not participate, but also did not recuse herself, meaning she probably would participate in any future election related litigation.

Pennsylvania is as close to a must win as there is for both Biden and Trump.

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