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- The Pennsylvania Department of State issued guidance to county election officials on Wednesday instructing them to segregate ballots that arrive after 8 p.m. on Election Day. According to the guidance, these ballots will be processed separately. Nowhere in the guidance does it say those ballots won’t be counted at all.
- Pennsylvania law requires that all ballots be received by 8 p.m. on Election Day. The state Supreme Court last month extended the deadline for this election so ballots can be received by mail until 5 p.m. on Friday, Nov. 6 if they are either postmarked by Election Day or have missing or illegible postmarks.
- Pennsylvania Republicans have asked the U.S. Supreme Court to block that decision, saying it violates the state legislature’s constitutional right to set election rules. The court denied Republicans’ request to expedite consideration of their request for relief, but the case remains open.
President Donald Trump’s campaign declared on Wednesday that it had won a big election-integrity victory in Pennsylvania, one of several key battleground states that will likely determine the outcome of the election.
"Major decision protecting voting rights in Pennsylvania," deputy campaign manager and senior counsel Justin Clark tweeted. "Ballots received after Election Day will not be counted. More to come, but big win for the rule of law."
He’s talking about guidance the Pennsylvania Department of State issued to county election officials on Wednesday instructing them to segregate ballots that arrive after 8 p.m. on Election Day. According to the guidance, these ballots will be processed separately. Nowhere in the guidance does it say the ballots won’t be counted at all.
Pennsylvania law requires all ballots to be received by 8 p.m. on Election Day. But citing United States Postal Service delays, the state Supreme Court last month extended the deadline for this election so ballots can be received by mail until 5 p.m. on Friday, Nov. 6, if they are either postmarked by Election Day or have missing or illegible postmarks.
Last month, Pennsylvania Republicans asked the U.S. Supreme Court to block that decision, saying it violates the state legislature’s constitutional right to set election rules. The justices split, 4-4, keeping the deadline extension intact.
Perhaps hoping that Justice Amy Coney Barrett’s confirmation to the high court might yield a different outcome, the Pennsylvania Republican Party last Friday again asked the court to take up the issue and strike down the deadline extension. At the same time, a Republican congressional candidate sued in federal court to toss the extension.
The Supreme Court denied Republicans' request to expedite consideration of their second request for relief, but the case remains open. That means the justices could still take up the case and ultimately reverse the deadline extension, even after Election Day. The guidance the Pennsylvania Department of State issued is designed to help counties prepare for that possibility.
"The secretary continues to defend the extension to ensure that every timely and validly cast mail-in and absentee ballot is counted," the guidance states. "Because this issue is still pending before the U.S. Supreme Court, however, county boards of elections are directed to take the following action to securely segregate mail-in and civilian absentee ballots."
The guidance directs counties to keep ballots that arrive after 8 p.m. on Nov. 3 and before 5 p.m. on Nov. 6 in separate, sealed, secure bins, and says these ballots should not be processed or counted until the state offers additional guidance. Counties were also instructed to keep a log of these ballots that includes the name and address of the voters who sent them, the date USPS delivered them, and details about any postmarks on the ballot envelopes.
Barrett didn’t participate in the decision not to expedite consideration of Republicans' latest request.
Republicans argue the state Supreme Court’s deadline extension will allow mail ballots to be cast and counted after Election Day, a judicial overreach that steps on the state legislature’s constitutional right to decide how elections are run. Several of the court’s conservative justices appear willing to back that argument, with Justice Samuel Alito writing Wednesday that "there is a strong likelihood that the state Supreme Court decision violates the federal constitution." Justices Clarence Thomas and Neil Gorsuch joined in that opinion.
Trump deputy campaign manager Justin Clark tweeted that Pennsylvania "ballots received after Election Day will not be counted," citing guidance released on Wednesday by the Pennsylvania Department of State in a subsequent campaign email.
The guidance instructs counties to segregate ballots that arrive after 8 p.m. on Election Day but does not say those ballots won’t be counted. The extended deadline for counting Pennsylvania ballots is under threat, but unless and until the U.S. Supreme Court takes action, ballots received by Nov. 6 at 5 p.m. will count.
We rate the statement Mostly False.
Twitter, @chefjclark tweet, Oct. 28, 2020
Pennsylvania Department 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
The Philadelphia Inquirer, "A trio of Pennsylvania Supreme Court rulings will likely boost Biden against Trump in a key state," Sept. 17, 2020
Spotlight PA, "U.S. Supreme Court allows 3-day extension to count Pennsylvania mail-in ballots," Oct. 19, 2020
The Philadelphia Inquirer, "Pennsylvania GOP again asks U.S. Supreme Court to block mail ballot deadline extension," Ocrt. 24, 2020
Pittsburgh Post-Gazette, "New lawsuit in Johnstown challenges Pa. ballot deadline extension," Oct. 22, 2020
Spotlight PA, "U.S. Supreme Court refuses to expedite Pa. mail ballot case, but could still intervene," Oct. 28, 2020
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