(Bloomberg Opinion) — There has been much worried Democratic speculation about how the Supreme Court might intervene to hand the election to President Donald Trump. Many scenarios are possible, but one is much more probable than the others. After Monday’s Supreme Court ruling blocking late-arriving mail-in ballots from being counted in Wisconsin, we can now say very concretely what the Bush v. Gore redux scenario looks like.
The scenario would arise in Pennsylvania. And the decisive vote would likely be cast by Justice Amy Coney Barrett. That’s because of Pennsylvania’s distinctive legal dispute about whether to count mail-in ballots received after 8 p.m. on Election Day.
First, it’s important to understand that a Supreme Court decision about Pennsylvania will only truly determine the outcome of the election if the electoral vote is close enough to make Pennsylvania decisive. If either candidate can win without Pennsylvania, this scenario wouldn’t decide the presidency.
But if the electoral tally is close, and late-arriving ballots in Pennsylvania could provide the margin of victory, we could be in for a legal nightmare.
As I explained in an earlier column, Pennsylvania state law says that ballots can’t be counted if they are received after the polls close on Election Day. But the Pennsylvania Supreme Court, relying on the Pennsylvania Constitution, ruled that under current conditions created by the combination of Covid-19 and U.S. mail delays, the state must count ballots received for three days after the statutory deadline.
When the U.S. Supreme Court was asked to review the Pennsylvania Supreme Court’s ruling, it split 4-4. That October 19 tie left the ruling in place. Neither side issued an explanation until October 26, when the justices gave their reasoning in a similar case pertaining to Wisconsin.
Here’s where things get a little complicated, so stay with me. In the Pennsylvania case, Chief Justice John Roberts cast his vote with the court’s three liberals. His reasoning, we now know, was that it is up to the Pennsylvania Supreme Court to interpret Pennsylvania law, including electoral law and the Pennsylvania Constitution. It’s not up to the U.S. Supreme Court. Hence he voted not to intervene.
In the Wisconsin case, Chief Justice Roberts voted with the other conservatives to block a federal judge’s order that also extended the deadline for receiving mail-in ballots after the statutory cutoff. He reasoned that, unlike the Pennsylvania Supreme Court, which is a state court, a federal district court ought not to change a state’s vote-counting rules.
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