By Hailey Konnath

Law360 (October 19, 2020, 11:58 PM EDT ) The U.S. Supreme Court on Monday upheld Pennsylvania's deadline extension for mail-in ballots for the upcoming election, rejecting state Republicans' qualms with the measure, which added three days for ballots to be received as long as they are mailed by 8 p.m. on Election Day in the key battleground state.

Last month, the Pennsylvania Supreme Court pushed the deadline to receive ballots for the Nov. 3 election to Nov. 6. The state high court also held that 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 Republican leaders in the state legislature pounced on that portion of the ruling, urging the U.S. Supreme Court to halt their implementation. The extension would allow ballots to be cast after Election Day, the Republicans argued.

But they ultimately failed to sway a majority of the Supreme Court justices, and the state's ruling was upheld Monday via a 4-to-4 deadlock.

In favor of granting the Republicans' stay requests were Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch and Brett M. Kavanaugh. Meanwhile, Chief Justice John G. Roberts Jr. and Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan voted against the stay.

The justices didn't elaborate on their decision in the pair of orders issued in the two related cases late Monday.

Pennsylvania Attorney General Josh Shapiro said the Supreme Court's decision "makes clear our law will stand despite repeated attacks."

"Pennsylvanians can continue to use drop boxes and ballots postmarked by Election Day will have extra time to arrive at election offices," Shapiro said in a statement. "With nearly a million votes already cast in Pennsylvania, we support the Court's decision not to meddle in our already-working system."

Meanwhile, the Pennsylvania Democratic Party heralded the decision as a "significant victory for Pennsylvania voters."

Nancy Patton Mills, chairwoman of the party, said in a statement that "Harrisburg Republicans have had every opportunity to get serious and work to empower Pennsylvania voters, but at every turn, they have chosen the route of attempting to sow confusion, disenfranchise eligible voters and silence the voices of Pennsylvanians."

She added, "The Supreme Court was right to throw out their latest bad-faith effort to muddy this election — and now Pennsylvania voters are ready to throw out Harrisburg Republicans on election day."

Counsel for the Pennsylvania Republican Party didn't immediately return a request for comment late Monday.

The dispute goes back to July, when Pennsylvania's Democratic Party filed suit asking for an order extending the deadline for mail-in ballots, citing an onslaught of ballot requests officials have anticipated in the run-up to the Nov. 3 election.

Pennsylvania's high court handed down its decision on Sept. 17, ruling 4-3 that the tight turnaround time built into the state's new mail-in voting statute, which allows any voter to request a mail-in ballot for any reason, threatened to disenfranchise voters given recent delays in mail delivery and the expected crush of requests for mail-in ballots.

"The legislature enacted an extremely condensed timeline, providing only seven days between the last date to request a mail-in ballot and the last day to return a completed ballot," Justice Max Baer wrote for the majority at the time. "While it may be feasible under normal conditions, it will unquestionably fail under the strain of COVID-19 and the 2020 presidential election, resulting in the disenfranchisement of voters."

The Republican Party and GOP leaders in the Pennsylvania legislature promptly appealed to the U.S. high court, lodging two separate opinions arguing that the possibility of sneaking a ballot in after the deadline constituted an illegal extension of the federal law setting the day of the election.

While the state Republican party had only sought a stay on the parts of the ruling regarding missing or illegible postmarks, state Senate President Pro Tem Joe Scarnati III, Senate Majority Leader Jake Corman, Speaker of the House Bryan Cutler and House Majority Leader Kerry Benninghoff wanted to halt the whole deadline extension, claiming the court had improperly usurped the legislative branch's power to set the time, place and manner of elections.

Pennsylvania's high court refused to pause its ruling while the matter was being appealed.

Earlier this month, Pennsylvania's top elections official and the Democratic Party of Pennsylvania urged the Supreme Court to reject the Republicans' applications, arguing that the Republican intervenors are wrong in their claims that the extension illegally changed the federal definition of "Election Day" and that the extension let the court usurp the state legislators' power to set the time and manner of elections.

Secretary of the Commonwealth Kathy Boockvar and the Democrats said in their briefs that 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.

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 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."

The Supreme Court denied to weigh in on the case's merits on Monday.

The high court has considered several voting and elections matters and is poised to take up more as the election looms. Earlier this month, the court said it would take up petitions from Arizona's attorney general and the Arizona Republican Party, which separately challenged a Ninth Circuit finding that two state voting regulations discriminated against minority voters.

And on Oct. 5, the court temporarily reinstated South Carolina's requirement that absentee ballots be signed by witnesses, a Republican-backed measure that had been struck down by a pair of lower courts that had found the requirement would be risky for voters in the midst of COVID-19.

The Republican Party is represented by John M. Gore and Alex Potapov of Jones Day and Kathleen Gallagher and Russell D. Giancola of Porter Wright Morris & Arthur LLP.

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.

The Pennsylvania Democratic Party and elected officials are represented by Clifford B. Levine and Alex M. Lacey of Dentons and Kevin Greenberg, A. Michael Pratt and Adam Roseman of Greenberg Traurig LLP.

Boockvar is represented by J. Bart DeLone, Howard G. Hopkirk, Sean A. Kirkpatrick, Michael J. Scarinci and Daniel B. Mullen of the Pennsylvania Attorney General's Office.

The cases are Joseph Scarnati et al. v. Pennsylvania Democratic Party et al., case number 20A53, and Pennsylvania Democratic Party et al. v. Kathy Boockvar et al., case number 20A54, both in the U.S. Supreme Court.

--Additional reporting by Matthew Santoni and Emma Whitford. Editing by Michael Watanabe.

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