GOP in Pa. asks SCOTUS to segregate all late-arriving mail ballots

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Pennsylvania vote count to continue for several days: state officials

Biden holds slight lead in state with nearly 40,000 mail-in ballots uncounted; Eric Shawn reports.

The Republican Party in Pennsylvania is asking the Supreme Court to order the state to segregate all late-arriving absentee ballots, in hopes that their suit to disallow the state from counting ballots that arrive after Nov. 3 but are postmarked by then could be successful. 

The state GOP filed a request, which will go to Justice Samuel Alito, from the conservative wing of the court. The state was already segregating these ballots before the emergency appeal was filed.

The state party request says: “The Court to order Respondents Secretary of State Boockvar and the county boards of elections to log, to segregate, and otherwise not to take any action related to any ballots that arrive after the General Assembly’s Election Day received-by deadline but before the Pennsylvania Supreme Court’s judicially extended deadline.”

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On Oct. 28, the high court said it wouldn’t fast-track an appeal to block vote-counting after Nov. 3. Alito had written a statement conceding "there is simply not enough time" to issue a pre-election decision.

The court's refusal to issue a fast-track decision does not mean it won't rule in the case. The petition asking for the court's review remains before the justices.

Therefore, Alito could ask the state to respond to the emergency appeal and set a deadline for those briefs to be filed. An order is expected in the coming days.

The Supreme Court could step in to overturn the Pennsylvania Supreme Court in the ruling that essentially changed state election law, and void votes after they have been cast in a state that has the potential to decide the presidential election, which is what Republicans are hoping. 

Meanwhile, Democrats in the state have asked the high court to hold off on any action on the petition from Republicans to strike down the three-day extension.

"There is no reason for the Court to expedite consideration of the pending petitions, let alone to grant certiorari at this time," the Pennsylvania Democratic Party said in its brief, urging the justices to exercise further patience. 

"Because this Court may well not need to hear and decide these cases, it would be premature for this Court to rule on the motion to intervene," the state party also said. 

"Without an immediate order from the court [Pennsylvania's GOP] could lose its right to 'a targeted remedy' if the State Supreme Court’s decision is ultimately overturned,” they said. 

Democratic nominee Joe Biden currently leads in the state by about 13,700 votes, with 98 percent of precincts reporting. 

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Given the tight results of the Nov. 3 election, Pennsylvania could determine the next president of the U.S., and the Trump campaign and the GOP have filed a litany of lawsuits alleging procedural violations. 

An appellate court in the state handed the Trump campaign a win Thursday by allowing election watchers to stand as close as six feet away from vote counters to ensure a fair process in Philadelphia. 

The campaign then said that election workers were not following the ruling and blocking election watchers from entering vote-counting rooms, and requested Pennsylvania stop counting votes until there was transparency.

A federal judge denied the campaign's request to stop the vote in Philadelphia over observer access, instead urging the sides to forge an agreement. 

Eastern District of Pennsylvania Judge Paul Diamond scheduled an emergency hearing over the suit, before pushing the parties to reach agreement during recess, then ruling that each side could have 60 observers in the vote-counting room as long as they could follow social distancing and stay behind a barrier.

On Thursday, the campaign asked the court to stop allowing voters to provide late missing proof of identification on Nov. 9, rather than Nov. 12. 

A judge then ordered the county boards of elections to segregate ballots for which ID was validated by Nov. 9 and ballots with valid IDs between Nov. 9 and 12. 

The segregated ballots “shall not be counted until further order of this court.”

The court hasn't decided the underlying issue: how long to allow for absentee and mail-in voters to provide identification. But, they're asking Pennsylvania to make sure the small subset of ballots at issue in the case are segregated from the rest.

The lawsuit filed Wednesday was against Pennsylvania Secretary of State Kathy Boockvar and 67 county election boards, claiming a guidance letter from Boockfar sent out Nov. 1 “re-writes the Election Code” by “resetting the deadline for absentee and mail-in voters to provide missing proof of identification” to the sixth day after the end of canvassing, which is Nov. 12. 

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Meanwhile, the Pennsylvania Election Code says the deadline is “the sixth day following the election,” which the campaign notes is Nov. 9. People who do not provide proof of identification in time are to have their ballots discarded.

Fox News' Bill Mears, Shannon Bream and Ronn Blitzer contributed to this report.