Supreme Court Justice Samuel Alito late Friday granted part of a request from Pennsylvania's state Republicans, who wanted an order regarding mail ballots that came in during the extended deadline.

He ordered county election officials to comply with a previous directive issued by the secretary of state to keep separate the mail ballots that arrived after Election Day but before Friday at 5 p.m. But he did not order the state to stop counting them. [source]

Why does the Supreme Court have any say in this? Isn't it entirely a state matter?

  • 2
    Court actions under state law may pass to the federal courts under several circumstances.
    – phoog
    Nov 7, 2020 at 2:02
  • 1
    Random non-compliance with state law by parts of the state is a violation of the Equal Protection Clauses.
    – user6726
    Nov 7, 2020 at 2:45
  • @user6726 Can you cite precedent? Laws are always applied in a discretionary, and therefore at least semi-random, way. Usually the bigger issue is when they are selectively not complied with: e.g. applying them with vigor to minorities but not to whites. Nov 8, 2020 at 3:42
  • Bush v. Gore is a concrete example.
    – user6726
    Nov 8, 2020 at 5:38
  • @user6726 It's a non-example, except apparently in Kavanaugh's mind, because the opinion goes out of its way to say it doesn't set any precedent and that the ruling is only applicable to that particular case. Nov 8, 2020 at 20:54

3 Answers 3


The constitution delegates the power of selecting Electors to the states themselves, through whatever method the state legislature so chooses (today it is always through a popular vote, in most cases statewide but in two cases it is done also by district). Elections for the Senate and Congress are also specifically delegated as to be done however each state legislature so chooses. A right to vote isn't mentioned in the constitution until the suffrage amendments. These protected the right to vote independent of race, servitude, and gender. Moreover, they granted Congress the authority to legislate so as to achieve these ends. So there is federal power intersecting with voting, at least.

Those probably aren't the bone of contention here, however. The claimed issue, as I understand it, is actually from the first part. The claim is that what is going on—extending deadlines etc. via decisions of election boards, court orders, or whatever—is a violation of the Constitution delegating control over voting to the legislatures. In the case of decisions by election boards (or similar thing), as the legislature in question will have of necessity passed legislation empowering the board to make such a decision on their own, it boils down to whether or not the legislature is held to have the power to delegate that power or not. There's no hard and fast rule for this: sometimes the US Congress has been held to have delegated too much, other times it's held to be just fine (and Kavanaugh, I think, seems inclined to think it has delegated too much in general and this needs to be addressed). For court orders, it becomes a question of whether the court has the authority to make such orders, or if this is an infringement of a power reserved to the legislatures.

Either way, it becomes a constitutional issue: do actions of election boards, duly enacted by legislation, or court orders, (sometimes) run afoul of the Constitutional grant of this power to the state legislatures? Chief Justice Roberts appears to be trying to toe a line where he does not want to get involved with second-guessing state election boards and state courts, wanting to just let those stand as state matters reserved to them by the constitution. His problem, it would seem, is with what federal courts can do, and he seems open to reviewing decisions from federal courts that concern the exercise of state powers on elections. In other words, he seems inclined to let stand a state court ruling to extend a deadline, but may take issue with a federal court issuing such a ruling. Of course, there are now 5 other "conservative" justices besides Roberts, only 4 of which are needed to hear a case, so the ability for Roberts to get the court to go along with this apparent line of legal reasoning will be strongly dependent on his ability to convince at least two of those conservatives of the correctness, or at least wisdom, of doing so. But that's another matter that goes beyond the question you've asked.


The Supreme Court has appellate jurisdiction over any matter involving the Constitution

The details aren’t given but no doubt this is an appeal from the state Supreme Court. Because it involves the election of a Federal officer (the President) the US Supreme Court has jurisdiction.

  • 1
    "Because it involves the election of a Federal officer (the President)" It doesn't, though. The President is elected by the Electoral College (or House). The election at issue is a state election to decide on which slate of electors the state will have (which states don't have to hold; state legislatures can have (and have had in the past) electors chosen another way).
    – user102008
    Nov 7, 2020 at 17:56
  • @user102008 True, but the reconstruction threw a lot of formerly state things under at least partial federal jurisdiction; the 14th gave us the broadly interpreted "Due process" clause, and ultimately the incorporation doctrine; and the 15th is the first constitutional mention of voting, and explicitly protects the right to vote independent of race and servitude and gives congress the power to legislate to that effect. So there are intersections of federal power here. But I would agree there's a better argument than "federal officer". Nov 8, 2020 at 3:39

The state supreme court has the final say in determining what the laws of the state are, but this case is about a federal law.

From the application:

The counting of votes that are of questionable legality threatens irreparable harm not only to RPP, its voters, and its supported candidates, but also to all Pennsylvanians and even the country, by casting a cloud upon the legitimacy of the election. And here, the issue presented is precisely whether the votes that have been ordered to be counted under the Pennsylvania Supreme Court’s extension and non-postmarked ballot presumption are legally cast votes under federal law and the U.S. Constitution.

In other words, the Republicans are claiming that the procedures in place pose an unacceptable risk that the state's election results will be influenced by ballots cast after the time established in the U.S. Constitution.

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .