Supreme Court Justice Samuel Alito issued an order requiring Pennsylvania election officials to separately count mail ballots that arrived after 8 p.m. on Election Day (Nov. 3) as President Donald Trump and former Vice President Joe Biden are hotly contesting the battleground state's 20 electoral votes.
Justice Alito issued the order on Friday evening, saying that all county boards of election must comply with guidance that requires them to set aside the late-arriving mail-in ballots and absentee ballots, the majority of which are being cast in favor of Democratic nominee Joe Biden, according to state data.
Late-Arriving Ballots to be Segregated, Counted Separately
"All ballots received by mail after 8 p.m. on Wednesday be segregated and kept in a safe, secure and sealed container separate from other voted ballots," the order reads before noting that if the ballots are counted, they must be counted separately.
Alito's order came after the Pennsylvania GOP requested the Supreme Court to intervene after claiming it was unable to get at least 25 of the county boards to confirm they were already doing that. Alito, however, declined to address a separate request for an emergency order to stop those ballots from being tallied.
Days before the election, Pennsylvania's Secretary of State Kathy Boockvar, had already announced that the late-arriving ballots would be tallied separately for the sake of "effective and clear election administration in Pennsylvania."
However, Alito said the boards' degree of compliance had not been confirmed by either party. "Neither the [Pennsylvania Republican Party] 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," he wrote.
Alito also urged Pennsylvania's Boockvar, the respondent in the case, to file any response as soon as possible and no later than Saturday at 2 p.m. Read the full order below:
Supreme Court Can Order a Revote if Late Ballots Not Counted Separately
The order left open the possibility that the justices could exclude the late-arriving ballots in a subsequent ruling, a move which Alito and at least two other conservative justices have previously hinted they may be inclined to take.
If the Supreme Court were to later invalidate the votes, it would impact the outcome of the presidential race between Trump and Biden given that Pennsylvania is a crucial state, in which the pair remains separated by a very slim margin.
Trump trails Biden in Pennsylvania — a state the president needs to win to reach the 270 vote majority — by about 20,000 votes and in a close race, a small percentage of votes can make all the difference.
However, if the votes have not been segregated from the get-go, the only solution would be to order a revote in the state, according to Senior Counsel Will Chamberlain.