Secretary of the Commonwealth Kathy Boockvar and the Democrats filed briefs Monday opposing state Republicans' request to stay part of the Supreme Court of Pennsylvania's Sept. 17 ruling, which added three days for ballots to be received as long as they are mailed by 8 p.m. on Election Day. They also asked the U.S. Supreme Court to weigh in on the merits of the case so it could clarify the issue for other states making deadline changes amid the COVID-19 pandemic.
"It is imperative that the deadline for receipt of mail-in ballots be known, and free of doubt, well before Election Day," the Democrats' brief said. "Otherwise, many thousands of voters who have relied on the current guidance from state election officials may be disenfranchised through no fault of their own."
Both parties argued that the Republican intervenors seeking the stay are wrong in their claims that the extension illegally changed the federal definition of "Election Day" and let the court usurp the state legislators' power to set the time and manner of elections.
In addition to allowing the collection of mail-in ballots with drop boxes and barring the counting of "naked ballots" mailed without their inner privacy envelope, the state justices accounted for potential delays in the U.S. Postal Service by extending the deadline for ballots to get to county election offices until 5 p.m. on Nov. 6, as long as they have been mailed by 8 p.m. on Nov. 3.
The court also said, as long as there wasn't evidence showing they had been mailed after Election Day, ballots without a legible postmark would be assumed to have been mailed on time.
The Republican Party of Pennsylvania and the Republican state Senate leadership seized upon the deadline parts of the ruling and asked the U.S. Supreme Court to halt their implementation, claiming they would allow ballots to be cast after Election Day.
Boockvar's brief said there was nothing to back up the Republicans' claim that voters would commit fraud by falsely back-dating their ballots and then somehow getting them through the postal service after Nov. 3 without getting a postmark to show that they missed the deadline.
"Applicants assert, without evidence, that accepting ballots without legible postmarks during the short three-day extension for tabulating votes necessarily allows ballots to be cast after Election Day," the secretary's brief said. "To assume that hordes of voters will commit voter fraud and flood the post offices with late ballots, so that some may slip through without postmarking, is fantasy. Applicants point to nothing in support of such baseless fearmongering."
Boockvar also argued that the U.S. Supreme Court could not second-guess its state counterpart in the interpretation of a purely state law issue, and the Republicans failed to turn it into a federal issue.
"The Pennsylvania Supreme Court's ability to be left free and unfettered in interpreting the Pennsylvania Constitution is fundamental to our system of federalism. In seeking a stay, applicants ask this court to intrude on the stability and clarity rendered by the Pennsylvania Supreme Court," the secretary's brief said. "Applicants engage in a sl[e]ight of hand. They attempt to convert a case that hinges upon state law into one that is about the electors and elections clauses of the United States Constitution and federal law. These federal provisions have no bearing on the present case."
Because all ballots still have to be "cast" or mailed by Nov. 3, the ruling did not actually change the federal definition of "Election Day," Boockvar said, and because the voters were still choosing the electors who would choose their representatives, it did not change or challenge the "electors." The issue of proving whether a ballot was postmarked before or on Election Day is not covered by federal law, she said.
"This issue is an evidentiary one. And on that issue, federal law is silent," the secretary's brief said. "That is yet another fatal flaw in applicants' claims: when federal election laws are silent, states are empowered to resolve the election issues."
Both Boockvar and the Democrats asked the Supreme Court to convert the application for a stay to a petition for a hearing on the merits and to make a ruling quickly, hopefully in the state's favor.
"Merely denying the stay in this case would not provide the certainty that is critical as the election approaches," the Democrats' brief said. "Pennsylvania is not the only state to alter its mail-in ballot rules in view of the unique confluence of the pandemic, unprecedented demand for mail-in ballots, and postal delays. The questions presented here are therefore of overwhelming importance for states and voters across the country."
"We look forward to the Supreme Court resolving this matter soon so that the people of Pennsylvania have final clarity on when the 2020 election will end," said Jason Torchinsky of Holztman Vogel Josefiak Torchinsky PLLC, one of the attorneys representing the Republican leaders.
A representative for Secretary Boockvar and an attorney for the Democrats declined to comment.
The GOP leadership is represented by Jason Torchinsky, Jonathan Lienhard, Shawn Sheehy and Dennis Polio of Holtzman Vogel Josefiak Torchinsky PLLC, Crystal Clark of the Pennsylvania Senate Republican Caucus and Lawrence Tabas of Obermayer Rebmann Maxwell & Hippel LLP.
Pennsylvania is represented by Attorney General Josh Shapiro, Chief Deputy Attorney General J. Bart DeLone, Senior Deputy Attorneys General Howard G. Hopkirk and Sean A. Kirkpatrick, and Deputy Attorneys General Michael J. Scarinci and Daniel B. Mullen.
The Pennsylvania Democratic Party and elected officials are represented by Clifford B. Levine and Alex M. Lacey of Dentons Cohen & Grigsby PC, Kevin Greenberg, A. Michael Pratt and Adam Roseman of Greenberg Traurig LLP and Lazar M. Palnick.
The case is Joseph Scarnati et al. v. Pennsylvania Democratic Party et al., case number 20A53, before the U.S. Supreme Court.
--Editing by Jack Karp.
Update: This article has been updated with comment from the Republicans' counsel.
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