Republican Party of Pennsylvania v. Boockvar ( 2020 )

Cite as: 592 U. S. ____ (2020) 1
Statement of ALITO, J.
SUPREME COURT OF THE UNITED STATES
REPUBLICAN PARTY OF PENNSYLVANIA v.
KATHY BOOCKVAR, SECRETARY OF
PENNSYLVANIA, ET AL.
ON MOTION TO EXPEDITE CONSIDERATION OF
THE PETITION FOR WRIT OF CERTIORARI
No. 20–542. Decided [October 28, 2020]
The motion to expedite consideration of the petition for a
writ of certiorari is denied. JUSTICE BARRETT took no part
in the consideration or decision of this motion.
Additional opinions may follow.
Statement of JUSTICE ALITO, with whom JUSTICE
THOMAS and JUSTICE GORSUCH join.
The Court’s handling of the important constitutional is-
sue raised by this matter has needlessly created conditions
that could lead to serious post-election problems. The Su-
preme Court of Pennsylvania has issued a decree that
squarely alters an important statutory provision enacted by
the Pennsylvania Legislature pursuant to its authority un-
der the Constitution of the United States to make rules gov-
erning the conduct of elections for federal office. See Art. I,
§4, cl. 1; Art. II, §1, cl. 2; Bush v. Palm Beach County Can-
vassing Bd., 531 U. S. 70, 76 (2000) (per curiam). In a law
called Act 77, the legislature permitted all voters to cast
their ballots by mail but unambiguously required that all
mailed ballots be received by 8 p.m. on election day. 2019
Pa. Leg. Serv. Act 2019–77; see 25 Pa. Stat. Ann., Tit. 25,
§§3146.6(c), 3150.16(c) (Purdon 2020). It also specified that
if this provision was declared invalid, much of the rest of
Act 77, including its liberalization of mail-in voting, would
be void. Act 77, §11. The legislature subsequently made it
clear that, in its judgment, the COVID–19 pandemic did not
call for any change in the election-day deadline. In a law
2 REPUBLICAN PARTY OF PENNSYLVANIA v. BOOCKVAR
Statement of ALITO, J.
enacted in March 2020, the legislature addressed election-
related issues caused by the pandemic, but it chose not to
amend the deadline for the receipt of mailed ballots. See
Pa. Leg. Serv. Act 2020–12.
In the face of Act 77’s deadline, the Pennsylvania Su-
preme Court, by a vote of four to three, decreed that mailed
ballots need not be received by election day. App. to Pet. for
Cert. 80a–81a. Instead, it imposed a different rule: Ballots
are to be treated as timely if they are postmarked on or be-
fore election day and are received within three days there-
after. Id., at 48a. In addition, the court ordered that a bal-
lot with no postmark or an illegible postmark must be
regarded as timely if it is received by that same date. Id.,
at 48a, n. 26. The court expressly acknowledged that the
statutory provision mandating receipt by election day was
unambiguous and that its abrogation of that rule was not
based on an interpretation of the statute. Id., at 43a. It
further conceded that the statutory deadline was constitu-
tional on its face, but it claimed broad power to do what it
thought was needed to respond to a “natural disaster,” and
it justified its decree as necessary to protect voters’ rights
under the Free and Equal Elections Clause of the State
Constitution. Id., at 44a, 45a–47a.
A month ago, the Republican Party of Pennsylvania and
the Pennsylvania Senate leaders asked this Court to stay
the Pennsylvania Supreme Court’s decision pending the fil-
ing and disposition of a petition for certiorari. See Republi-
can Party of Pennsylvania v. Boockvar, No. 20A54; Scarnati
v. Boockvar, No. 20A53. They argued that the state court
decision violated the previously cited constitutional provi-
sions, as well as the federal statute setting a uniform date
for federal elections. Application for Stay in No. 20A54,
p. 2; Application for Stay in No. 20A53, pp. 2–3. Respond-
ent, Democratic Party of Pennsylvania (DPP), agreed that
the constitutionality of the State Supreme Court’s decision
was a matter of national importance and urged us to grant
review and to decide the issue before the election. DPP Re-
Cite as: 592 U. S. ____ (2020) 3
Statement of ALITO, J.
sponse to Application for Stay in No. 20A53 etc., p. 9. In-
stead of doing what either party sought, the Court simply
denied the stay. Although there were four votes to enter a
stay, the application failed by an equally divided vote. Now,
in a last ditch attempt to prevent the election in Pennsylva-
nia from being conducted under a cloud, we have been
asked to grant a petition for a writ of certiorari, to expedite
review, and to decide the constitutional question prior to
the election.
It would be highly desirable to issue a ruling on the con-
stitutionality of the State Supreme Court’s decision before
the election. That question has national importance, and
there is a strong likelihood that the State Supreme Court
decision violates the Federal Constitution. The provisions
of the Federal Constitution conferring on state legislatures,
not state courts, the authority to make rules governing fed-
eral elections would be meaningless if a state court could
override the rules adopted by the legislature simply by
claiming that a state constitutional provision gave the
courts the authority to make whatever rules it thought ap-
propriate for the conduct of a fair election. See Art. I, §4,
cl. 1; Art. II, §1, cl. 2.
For these reasons, the question presented by the Penn-
sylvania Supreme Court’s decision calls out for review by
this Court—as both the State Republican and Democratic
Parties agreed when the former applied for a stay. But I
reluctantly conclude that there is simply not enough time
at this late date to decide the question before the election.
That does not mean, however, that the state court deci-
sion must escape our review. Although the Court denies
the motion to expedite, the petition for certiorari remains
before us, and if it is granted, the case can then be decided
under a shortened schedule. In addition, the Court’s denial
of the motion to expedite is not a denial of a request for this
Court to order that ballots received after election day be
segregated so that if the State Supreme Court’s decision is
4 REPUBLICAN PARTY OF PENNSYLVANIA v. BOOCKVAR
Statement of ALITO, J.
ultimately overturned, a targeted remedy will be available.
Petitioner represents that it will apply to this Court to ob-
tain that modest relief, Reply in Support of Motion for Ex-
pedited Review 3, and Respondent DPP agrees that such
relief is appropriate, Opp. to Motion for Expedited Review
7. Although the Pennsylvania Supreme Court rejected Pe-
titioner’s request for that relief, we have been informed by
the Pennsylvania Attorney General that the Secretary of
the Commonwealth issued guidance today directing county
boards of elections to segregate ballots received between
8:00 p.m. on November 3, 2020, and 5:00 p.m. on November
6, 2020. Nothing in the Court’s order today precludes Peti-
tioner from applying to this Court for relief if, for some rea-
son, it is not satisfied with the Secretary’s guidance.