By Robert Willmann
A conference of the Supreme Court judges took place on Friday, 13 November, during which they discussed pending matters. Possibly on the list was the request asking them to agree to hear the Pennsylvania voting case and to confirm Judge Samuel Alito's stay order directed at ballots received after election day in that state. The court often issues orders on a Monday, and so the results of their discussion may be known soon.
Pennsylvania Attorney General Josh Shapiro and Secretary of State Kathy Boockvar thought they would be cute and snooker the U.S. Supreme Court into not issuing an order to segregate and secure ballots that came in after the 8:00 p.m. deadline on election day, which had been (unconstitutionally) extended by the Pennsylvania Supreme Court to Friday, 6 November, three days after the election. Two applications were made to the U.S Supreme Court for a "stay order" on 28 September 2020 to block the extended deadline. The court denied them on 19 October, with the notation that Judges Thomas, Alito, Gorsuch, and Kavanaugh would have granted the stay. On 23 October, the Republican Party of Pennsylvania filed a request asking the court to agree to hear the case, plus a motion to speed up the usual time frame for that process. The motion asking for a faster time period was denied on 28 October, and included a "statement" by Judges Thomas, Alito, and Gorsuch which said, in part –
"… 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 Petitioner from applying to this Court for relief if, for some reason, it is not satisfied with the Secretary’s guidance".
Four days later, Pennsylvania Secretary of State Boockvar put out a "guidance" about canvassing segregated mail-in and civilian absentee ballots received by mail after the deadline. That document, and the inability to find out if all of Pennsylvania's election boards were following the earlier "guidance" of 28 October, caused the Pennsylvania Republican Party to file a request in the U.S. Supreme Court for an injunction order on 6 November. Two days earlier, on 4 November, the Donald Trump campaign had filed a request to intervene in the pending matters .
The application for an injunction was submitted to Judge Alito. He is the designated judge for the Third and Fifth Circuits to whom certain types of requests can be presented. For federal courts of appeals, the U.S. is divided into "circuits", and those geographical areas include smaller areas called federal "districts", for the federal district courts (the trial courts). A Supreme Court judge is assigned to each circuit .
Judge Alito granted a stay order, which turned some of the "guidance" of the Pennsylvania Secretary of State into a formal order, and in the last three sentences he pointedly recognized that the state and counties tried to pull a fast one–
"Nov 06 2020 Order issued by Justice Alito: All county boards of election are hereby ordered, pending further order of the Court, to comply with the following guidance provided by the Secretary of the Commonwealth on October 28 and November 1, namely, (1) that all ballots received by mail after 8:00 p.m. on November 3 be segregated and kept “in a secure, safe and sealed container separate from other voted ballots,” and (2) that all such ballots, if counted, be counted separately. Pa. Dep’t of State, Pennsylvania Guidance for Mail-in and Absentee Ballots Received From the United States Postal Service After 8:00 p.m. on Tuesday, November 3, 2020 (Oct. 28, 2020); Pa. Dep’t of State, Canvassing Segregated Mail-in and Civilian Absentee Ballots Received by Mail After 8:00 p.m. on Tuesday, November 3, 2020 and Before 5:00 p.m. on Friday, November 6, 2020 (Nov. 1, 2020). Until today, this Court was not informed that the guidance issued on October 28, which had an important bearing on the question whether to order special treatment of the ballots in question, had been modified. The application received today also informs the Court that neither the applicant 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. I am immediately referring this application to the Conference and direct that any response be filed as soon as possible but in any event no later than 2 p.m. tomorrow, November 7, 2020".
Judge Alito's stay order and his immediate referral of the application for an injunction to the entire court galvanized the Pennsylvania Democratic Party into action, which had been just slipstreaming the case after the Pennsylvania Supreme Court ruled in its favor on 17 September and changed the deadline. At that point Pennsylvania and its Secretary of State would be involved in the election along with local election boards. However, the Pennsylvania Democratic Party is still technically a party and got its opposition to an injunction filed the same day as Alito's order, 6 November. Secretary of State Boockvar and the Luzerne County Board of Elections, another party, filed their objections to an injunction on Saturday, 7 November.
Pennsylvania Attorney General Josh Shapiro could not leave well enough alone, and on Sunday, 8 November, his office filed a letter similar its 28 October one, again trying to sucker the Supreme Court into not issuing a formal order. The letter said that by 8 November all the Pennsylvania counties had "confirmed" their "intention" to follow the "guidance" .
The big problem is that Boockvar's guidance is not binding on the counties, as the Pennsylvania Republican Party pointed out in its request for an injunction, and the instructions can be changed at any time, and they were . The 28 October guidance said that the counties "shall not pre-canvass or canvass any mail-in or civilian absentee ballots … until further direction is received". But the 1 November document said that the counties "shall canvass segregated absentee and mail-in ballots received" after election day .
Seventeen states filed "friend of the court" briefs supporting the request asking the Supreme Court to hear the case. Oklahoma, Indiana, Kansas, Nebraska, Tennessee, and West Virginia filed a brief together. Missouri, Alabama, Arkansas, Florida, Kentucky, Louisiana, Mississippi, South Carolina, South Dakota, and Texas went in on one brief. Ohio filed a brief by itself.
The issue being presented is that the Pennsylvania Supreme Court illegally rewrote the election law passed by the Pennsylvania legislature by extending the deadline that ballots could be received, from a deadline on election day to three days after election day. However, problems such as voting fraud, ineligible voters, sloppy counting, and procedures that are too weak or worthless to determine whether a vote is valid are not issues in this particular case.
Nevertheless, it is important that the Supreme Court agree to hear the matter and issue an injunction against ballots received after election day in Pennsylvania. Accepting the case for review will be a can opener to get at least one election issue before the court. Then, as more critical issues, such as voting fraud, are procedurally at a point to knock on the door and seek a hearing, the court may be more apt to agree to get involved, and perhaps other cases could be consolidated with this one for consideration and decision, depending on issues and facts. In addition, the Supreme Court can show that it will not tolerate cheesy attempts by a litigant to fool it through dodgy language and the omission of relevant facts. The assertion by the Pennsylvania Attorney General and Secretary of State that the county election boards "intend" to follow their "guidance", which is not binding on the counties, and so an injunction and court review are not needed, is what is called bulls**t.
Chief Judge John Roberts has indicated that he is not inclined to get involved when state election laws are changed by state actors who are not the legislature . If he persists with that position, Judge Amy Coney Barrett will probably have to step up and provide a fifth vote to issue an injunction against some Pennsylvania ballots received after election day.
 The statement when the court declined to speed up its timetable.
 Supreme Court judges assigned to the federal circuits and a map of the circuits. You have to scroll down the webpage a little to see the information.
 Letter filed in the Supreme Court on 8 November 2020 by the Pennsylvania Attorney General that the county election boards intended to follow the "guidance".
 Two pages from the application for an injunction filed in the Supreme Court by the Pennsylvania Republican Party.
 The non-binding "guidance" from the Pennsylvania Secretary of State from 28 October and 1 November 2020.
 The ruling that the deadline to receive ballots in Wisconsin will not be extended, which includes a concurring opinion by Chief Judge John Roberts.