By Matthew Santoni

Law360 (September 22, 2020, 5:05 PM EDT ) Pennsylvania Republicans will ask the U.S. Supreme Court to review a state high court decision to extend the mail-in ballot deadline up to three days after Election Day, in what could be one of the first cases before the high court since the death of Justice Ruth Bader Ginsburg.

Focusing on the part of the ruling that said counties should still count ballots with an illegible postmark or no postmark to show they had been sent before the 8 p.m. Nov. 3 mailing deadline, the Republican Party of Pennsylvania, along with 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, filed separate petitions asking the Supreme Court of Pennsylvania to stay that part of its Sept. 17 ruling while the Republicans ask the U.S. Supreme Court to weigh in on whether the decision illegally extended voting past Election Day.

"The decision violates federal law, which establishes 'the Tuesday next after the 1st Monday in November' as a single federal election day, which falls on November 3rd this year," the legislators' petition for a stay said Tuesday. "This court's slip opinion extend[ed] election day past November 3, 2020, … by forcing election officials to accept ballots received after election day even if these ballots lack a legible postmark. This permits ballots to be both voted and counted after election day, extending the General Election past November 3, 2020."

Both the Republican Party and the lawmakers' petitions, filed Monday and Tuesday, respectively, asked the state's justices to stay part or all of the three-day deadline extension until after the Republicans can seek an opinion from the Supreme Court, which will hold its next session starting Oct. 5 with eight justices following the death of Justice Ginsburg.

After President Trump's reelection campaign and the Republican National Committee had filed a federal lawsuit seeking to block Pennsylvania from allowing voting via drop boxes, Democrats filed a state court lawsuit seeking to declare drop boxes legal under state law and asking for other relief related to the pandemic, including extending the received-by deadline for mail-in ballots. The Republican Party of Pennsylvania was allowed to intervene in the state lawsuit, though the lawmakers were not.

The Pennsylvania justices' 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.

The justices also allowed counties to set up unmanned drop boxes for collecting mail-in ballots, barred the counting of ballots that hadn't been sent inside an unmarked privacy envelope, and said the counties did not have to give voters a chance to fix deficient ballots. The two petitions did not immediately challenge those findings.

Instead, they pointed to a footnote and the conclusion of the majority opinion, which both said, "a ballot received on or before 5:00 p.m. on November 6, 2020, will be presumed to have been mailed by Election Day unless a preponderance of the evidence demonstrates that it was mailed after Election Day."

The Pennsylvania justices' 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, the legislators' petition said.

"The court's presumption opens the door to illegally and untimely cast or mailed ballots being counted in, and tainting the results of, the imminent general election in which millions of Pennsylvanians will exercise their right to vote," the Republican Party's petition said. "Such a 'significant departure' as extending the received-by deadline and adopting a presumption under which illegally and untimely cast or mailed ballots nonetheless may be counted 'raises a federal constitutional question' and a substantial issue on the merits."

The state legislature, which both petitions said was granted the power to set the times, places and manner of federal elections, had the opportunity to extend the deadlines itself when it passed changes in response to the pandemic in late March, but did not, the party's petition said. The court's ruling had improperly usurped the power granted to the legislature by federal law, the petitioners said.

While the Republican Party only sought a stay on the ballots lacking a legible postmark, the Republican legislative leaders asked for a broader halt to the deadline extension.

"Pennsylvania's period for absentee and mail-in ballot submission is unquestionably a regulation of the times, places, or manner of elections ... because it regulates the time during which absentee and mail-in ballots may be submitted to elections officials," the legislators' petition said. "This deadline is a quintessential example of the General Assembly exercising its authority under the Elections Clause."

The legislators said there was at least a "reasonable probability" the U.S. Supreme Court would hear their case and could overturn the court's ruling, which favored a stay. Both the party and the lawmakers said they could be irreparably harmed if voting began without a stay.

"Maintaining a secure, fair, and reliable election system is paramount to promoting public confidence in the legitimacy of the government. It is the Constitutional prerogative of the Pennsylvania General Assembly, including the Pennsylvania House, to accomplish this hallowed aim by determining the time, place, and manner of elections," said Jake Evans of Holland & Knight, representing Cutler and Benninghoff.

"We are seeking a stay of implementation of the Pennsylvania Supreme Court's decision to protect this right and to ensure laws governing elections are created by the people, through their duly elected representatives, not through the Courts."

Counsel for the other Republican petitioners did not immediately respond to requests for comment Tuesday. A representative of the Pennsylvania Department of State declined to comment.

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 Armenzzani, John Dempsey and Donna Walsh of Myers Brier & Kelly LLP, J. Bart Delone, Nicole Boland, Howard Hopkirk, Sean Kirkpatrick, Stephen Moniak, Daniel Mullen, Keli Neary and Karen Romano of the Office of Attorney General, Susan Davies, Daniel Donovan and Michael Glick of Kirkland & Ellis LLP, Timothy Gates and Kathleen Kotula of the Department of State and Mary Giunta and Kenneth Joel of the Office of General Counsel.

--Editing by Steven Edelstone.

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