The Supreme Court on Friday rejected a Republican appeal to block certain Pennsylvania votes from counting in the battleground state. As happens too often in emergency appeals, the court didn’t explain itself. The only published thoughts on the matter came in a brief statement from Justice Samuel Alito, joined by fellow GOP appointees Clarence Thomas and Neil Gorsuch.
The separate writing from Alito wasn’t a dissent. But he chose to write it, and two justices chose to join it, so it’s worth unpacking its possible meaning and impact on what could be a close election.
Here’s how the two-paragraph statement began:
This case concerns a recent decision of the Supreme Court of Pennsylvania that adopted a controversial interpretation of important provisions of the Pennsylvania Election Code. Specifically, the court held that a provisional ballot must be counted even if the voter previously submitted an invalid mail-in ballot within the time required by law.
Note that Alito cast the state court’s action as controversial, suggesting his disagreement with it, even though he didn’t dissent from the court’s rejection of the challenge to that action. He then uncritically described the GOP challenge:
The applicants contend that this interpretation flouts the plain meaning of the state election code, see 25 Pa. Cons. Stat. §3050(a.4)(5)(ii) (2019), and that the interpretation is so far afield that it also violates the Elections Clause and the Electors Clause of the Constitution of the United States. See Art. I, §4, cl. 1; Art. II, §1, cl. 2; Moore v. Harper, 600 U. S. 1, 37 (2023). Seeking to prevent county election boards from following that interpretation in next week’s election, the applicants ask us to stay the State Supreme Court’s judgment or at least to order the sequestration of ballots that may be affected by that interpretation.
So, if these three Republican-appointed justices were apparently sympathetic to — or at least not critical of — the Republican challenge, why didn’t they dissent? Alito went on to explain, in the statement’s second paragraph, that it was for technical reasons in the appeal:
The application of the State Supreme Court’s interpretation in the upcoming election is a matter of considerable importance, but even if we agreed with the applicants’ federal constitutional argument (a question on which I express no view at this time), we could not prevent the consequences they fear. The lower court’s judgment concerns just two votes in the long-completed Pennsylvania primary. Staying that judgment would not impose any binding obligation on any of the Pennsylvania officials who are responsible for the conduct of this year’s election. And because the only state election officials who are parties in this case are the members of the board of elections in one small county, we cannot order other election boards to sequester affected ballots. For these reasons, I agree with the order denying the application.
Note that after earlier describing the state ruling as “controversial,” he deems the issue raised by the appeal to be one of “considerable importance.” So even if, as Alito writes, he isn’t expressing a view on the merits of the GOP argument, the three justices aren’t rejecting it. If anything, they could be seen as endorsing it and encouraging further challenges in this election.
Of course, this statement only came from three justices, which isn’t enough to move the court. That raises the question of what the other three Republican appointees — Chief Justice John Roberts and Justices Brett Kavanaugh and Amy Coney Barrett — would do if faced with a similar appeal in a case that didn’t raise the issues Alito flagged. Roberts, Kavanaugh and Barrett have been in the relative middle of the court these days on some of the most important issues — and this election is no exception. We shouldn’t have to infer from silence what the court is up to. That’s what makes a decision like last week’s in Virginia troubling. This is where it would be helpful if the court would explain itself, even briefly, in these emergency appeals. We shouldn’t have to infer from silence what the court is up to. That’s what makes a decision like last week’s in Virginia troubling, where the majority permitted the state’s voter purge over dissent from the court’s three Democratic appointees without explanation. The majority’s silence in the Virginia case was arguably worse than in the Pennsylvania case because in Virginia it granted emergency relief in a case in which lower court judges explained why they rejected such relief. But while a majority of the high court hasn’t shown an eagerness to intervene for Republicans in every appeal so far this election season, Friday’s statement could signal that at least three justices are prepared to do so when it counts. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in Donald Trump’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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