Justice Alito orders Pennsylvania to separate votes that arrived after Election Day

U.S. Supreme Court Justice Samuel Alito issued a ruling Friday ordering county election boards in Pennsylvania to comply with a state directive to separate mail-in ballots received after 8 p.m. on Election Day from other ballots.

He denied a request by Pennsylvania’s Republicans to immediately halt the counting of ballots arriving after Election Day and referred the challenge to the full court for a ruling on Saturday.

Alito, the justice responsible for the region of the country that covers Pennsylvania ordered Democrats to reply by 2 p.m. Saturday.

In the order Alito wrote: “… neither the applicant (Pennsylvania G O P) nor the Secretary has been able to verify that all boards are complying with the Secretary’s guidance, which, it is alleged, is not legally binding on them.”

Republicans filed an emergency petition Friday arguing it was unclear whether all 67 county election boards were complying with Secretary of the Commonwealth Kathy Boockvar’s Oct. 28 directive to separate late-arriving ballots.

The request said 25 counties had not indicated whether they were separating the disputed ballots, which would be necessary in case the court ultimately agrees to hear the case.

Republicans were unable to get Boockvar or all the county boards of election to confirm they were actually complying.

“Given the results of the November 3, 2020 general election, the vote in Pennsylvania may well determine the next president of the United States,” the Republicans argued.

“It is unclear whether all 67 county boards of elections are segregating late-arriving ballots,” the petition added.

President Donald Trump’s supporters across the country hailed the decision as a major legal victory.

Republicans have petitioned the justices to invalidate a September decision by the Pennsylvania Supreme Court that allowed election officials to count mail-in ballots postmarked by Election Day that are delivered through Friday.

They argue that the state Supreme Court overstepped its authority because the U.S. Constitution gives the power to set up state election laws to state legislatures.

Last week, the U.S. Supreme Court declined to expedite a hearing in the case.

The state Supreme Court circumvented the state legislature and ruled that the state should count ballots arriving up to three days after Election Day with no postmarks and no signature matches. Previously ballots had to arrive on Election Day in order to be accepted.

The U.S. Supreme Court allowed the ruling to stand on October 19 in a 4-4 decision which split along conservative and liberal lines while the court was waiting for the appointment of new justice Amy Coney Barrett.

Alito, joined by justices Clarence Thomas and Neil Gorsuch backed the court’s refusal to take up the case, saying there was not enough time to issue a ruling before the election.

The court said it could revisit the case after November 3, noting it is “likely” the Pennsylvania Supreme Court ruling is unconstitutional.

Democrats had asked the U.S. Supreme Court on Thursday to hold off any action on the petition from Republicans after the Trump campaign filed a motion to join the state GOP’s fight.