Pa. Republicans ask Supreme Court to stay ruling that allows state to accept ballots 3 days after election

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Mail-in voting sparks debate in PA

The presidential election is less than eight weeks away and all eyes are on battleground states like Pennsylvania. Board of Elections officials there are anticipating at least 50 percent of voters will vote by mail.

Pennsylvania Senate Majority Leader Jake Corman and Senate President Pro Tempore Joe Scarnati on Monday filed an emergency request for a stay to the U.S. Supreme Court, asking it to put the brakes on a Pennsylvania Supreme Court ruling that pushed back the deadline for the state to receive mail-in ballots to three days after the presidential election.

The filing from Corman and Scarnati, both Republicans, comes amid a fight over election law in a state that figures to be pivotal in deciding the outcome of the presidential election. The request for a stay went to Justice Samuel Alito based on geography alone – Alito oversees the Third Circuit, in which Pennsylvania resides.

"In the middle of an ongoing election, the Supreme Court of Pennsylvania has altered the rules of the election and extended the 2020 general election beyond the 'time' established by the state legislature pursuant to Article I, Section IV of the U.S. Constitution," the lawsuit says in its opening line. "In doing so, the Supreme Court of Pennsylvania has violated federal law and the federal Constitution."

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Pennsylvania late last year established a law allowing for no-excuse absentee balloting in the state and setting a deadline of 8 p.m. on Election Day for ballots to be received in order to be counted. But the state law allowed voters to request absentee ballots up until seven days before the election, leading the U.S. Postal Service earlier this year to warn the state that its law, consistent with USPS delivery standards, did not allow voters enough time to reliably get their ballots counted even if they followed all the rules.

This led the Pennsylvania Democratic Party to file a suit asking for the deadline for the state to receive ballots be extended by seven days. Pennsylvania Secretary of State Kathy Boockvar, a Democrat, asked the court to instead extend the deadline three days. The court followed Boockvar's recommendation in a ruling issued earlier this month to the loud objections of Republicans.

"In light of these unprecedented numbers and the near-certain delays that will occur in boards processing the mail-in applications, we conclude that the timeline built into the election code cannot be met by the USPS’s current delivery standards," the Pennsylvania Supreme Court said as it cited authority to make such rulings in emergency circumstances. "The Legislature enacted an extremely condensed timeline, providing only seven days between the last date to request a mail-in ballot and the last day to return a completed ballot. While it may be feasible under normal conditions, it will unquestionably fail under the strain of COVID-19 and the 2020 presidential election, resulting in the disenfranchisement of voters."

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The Republican legislators' request for a stay filed on Tuesday says that the Pennsylvania Supreme Court did not have the authority to make such a ruling and that it could cause chaos and fraud as the crucial state tries to tabulate its votes. They also say the ruling violates federal law and the Constitution, which gives legislatures the authority to set election law and says there can only be one Election Day.

"This is an open invitation to voters to cast their ballots after Election Day, thereby injecting chaos and the potential for gamesmanship into what was an orderly and secure schedule of clear, bright-line deadlines," the request reads.

It adds: "The Supreme Court of Pennsylvania’s decision necessarily creates multiple federal election days, including after Election Day, and raises the same concerns of fraud, undue advantage and non-uniformity which led to the creation of a Federal Election Day."

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Pennsylvania Gov. Tom Wolf, a Democrat, lauded the Pennsylvania Supreme Court decision at the time it was handed down.

"Yesterday’s PA Supreme Court decision will help ensure voters will more easily be able to cast their ballot and have it counted fairly," he said.

Jenn Kocher, the press secretary for Corman, told Fox News that the emphasis of their lawsuit was to ensure votes are counted quickly and accurately.

"Under the Constitution, the responsibility to determine the times, places and manner of elections lies solely within the legislative process. We are asking for the U.S. Supreme Court to intervene because we believe the Pennsylvania Supreme Court has erred in its ruling and is jeopardizing the accountability of our election process in Pennsylvania," she said. "Our goal is to fulfill our constitutional obligation to ensure that everyone has the opportunity to vote, that voters' confidence that the system is fair and that the votes are counted in a timely manner."

"The Pennsylvania Republican Party has every intention of attempting to protect the right of Pennsylvanians to have a free and fair election," Pennsylvania GOP General Counsel Tom King told Fox News. He warned that confidence in the election results would be diminished if ballots are being cast and counted after Election Day. The Pennsylvania Republican party filed a separate but similar request for a stay on Monday.

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The Pennsylvania Democratic Party declined to comment on legal matters.

Alito can either decide to grant the Pennsylvania Republicans' request for a stay on his own or refer it to the full Supreme Court. It is likely he will ask the Pennsylvania Democratic Party and other relevant parties like Boockvar to file a response before granting a stay.

The Republicans warn that without a quick grant of their request for a stay, "the machinery of the election will continue inexorably toward Election Day. With each passing day, more and more voters will learn that the deadline is not Election Day – as established by statute – but three days after Election Day."

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