The election: The legal issues

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The Supreme Court on Friday ordered Pennsylvania election boards to separately count mail ballots that arrived after Election Day, while rejecting a GOP request to stop counting those votes.

The order, signed by conservative Justice Samuel Alito, left open the possibility that the justices could exclude the late-arriving ballots in a subsequent ruling, a move which Alito and at least two other conservative justices have previously signaled they may be inclined to take.

Friday’s order was the first time the Supreme Court has gotten involved in a state count after Election Day. Alito urged Pennsylvania’s Democratic Secretary of State Kathy Boockvar, the respondent in the case, to file any response as soon as possible and no later than Saturday at 2 p.m.

The order granted only part of what was sought by Pennsylvania Republicans, who are challenging the state’s extended Friday mail ballot deadline. The state GOP requested justices halt the counting of late-arriving ballots.

“This preserves the status quo until any further order of the Court, after the possibility of a response,” said Ned Foley, a law professor at Ohio State University. “It’s also significant in that it does not stop the counting of the segregated votes, but rather requires them to be counted separately — which is a sensible way to prevent any possible commingling of ballots that could not be undone later.”

Justice Amy Coney Barrett, who joined the bench one day before the court denied the GOP’s motion to expedite, took no part in its consideration. She and Justice Brett Kavanaugh would likely hold the decisive votes if the court were to grant the Republican’s pending appeal, which requires the approval of at least four justices.