By John M. Reeves
This is Part 2 in our analysis of Republican Party of Pennsylvania v. Kathy Boockvar, et al., the case currently pending before the Supreme Court of the United States involving Pennsylvania election law. It is unclear at this point whether the Court will agree to hear the case. In Part 1, we examined the substantive legal issues presented in the case—namely, that the Constitution vests state legislatures with the authority to determine the time, place, and manner of Presidential elections, and that the state judiciary has no authority to usurp this function.
Here, we will discuss the case’s current status, and what has gone on so far. We will also try and clarify some of the more complex procedural aspects of Supreme Court litigation. Has the Supreme Court actually agreed to hear the case? What did the earlier 4-4 split mean where the Court refused to order the Pennsylvania Supreme Court to segregate out the ballots? Why has Justice Barrett not been involved in the case so far? Why was Justice Alito, and not one of the other Justices, the one who issued last Friday’s order? And, what does Justice Alito’s most recent order mean?
Certiorari petitions vs. stay applications: What’s the difference?
Two things are actually pending before the Court right now: The Republican Party’s petition for a writ of certiorari and its application to stay and recall the mandate of the Pennsylvania Supreme Court. While similar, they are two separate things.
As most who follow the Court know, a petition for a writ of certiorari is a party’s legal brief asking the Court to agree to hear a case. The Supreme Court, with a few exceptions not relevant here, does not have to hear any of the cases that come before it, unlike a normal appellate court. A cert petition presents the legal arguments for why the Court should agree to hear the case in the first place, and opposing counsel may submit a brief arguing why the Court should not hear the case. If the Court does grant a cert petition, it orders each party to file briefs arguing why its side should win, and sets the case for oral argument. If the cert petition is denied, that’s the end of the case.
An application to stay the mandate is part of a lesser-known aspect of Supreme Court practice. Normally, the filing of a cert petition by the party that wants to challenge the lower court’s ruling does not put the enforcement of the lower court’s ruling on hold—the cert petition does not “stay” the ruling. In other words, the ruling being challenged will go into effect while the Supreme Court is disposing of the case. The lower court issues what is called a “mandate” with its opinion. The “mandate” is what makes the lower court’s order enforceable, and the mandate is in effect while the cert petition is pending.
Accordingly, if a party who wants to seek cert thinks that it will suffer irreparable harm if the lower court’s order is enforced while they seek cert, it can apply for the lower court’s mandate to be recalled and stayed pending the disposition of the cert petition. But normally, the party has to seek a stay of the mandate from the lower court first. Only if the lower court denies that request may the party then apply to the Supreme Court for a stay.
A stay application is very difficult to obtain. The party must show it has a reasonable chance of the cert petition being granted, and that it will suffer irreparable harm in the absence of a stay. Under the rules, the party must apply to an individual Justice, and not to the Court as a whole. The Justice to whom the application is made is determined geographically. Each Justice is assigned to oversee a particular federal appellate circuit for stay applications, which includes all state courts within that circuit. Thus, Justice Alito is assigned to the Third Circuit, where Pennsylvania is located.
The need for a stay of the mandate in the Pennsylvania case
Given the above, it is easy to see why the Republican Party sought a stay of the Pennsylvania Supreme Court’s mandate that ballots received after 8 pm on election day be included in the vote tally. Under the normal timeframe for Supreme Court litigation, it was highly unlikely that the Court would be able to resolve the case before election day, even if it decided to grant the petition, order full briefing, and hear the case in full. If the Court agreed to hear the case, and subsequently ruled that all votes received after election day were invalid, that would mean that the total vote count in Pennsylvania would need to be reduced by the number of votes received after election day. But if the Court issued its ruling after election day, how would Pennsylvania be able to separate the valid votes from the invalid votes?
Recognizing this quandary, the Republican Party of Pennsylvania first asked the Pennsylvania Supreme Court to stay its mandate pending the cert petition’s filing. The Pennsylvania Supreme Court denied this, so they applied to Justice Alito for a stay. In other words, they asked Justice Alito to order that any votes received after November 3 at 8:00 pm not be counted towards the total vote tally, but rather be segregated from the total vote count, pending the resolution of the lawsuit by the entire US Supreme Court. That way, if the Republican Party won the case, the results of the vote count it would be easy to calculate the final vote count without the post-election day ballots. If the Republican Party lost the case, on the other hand, the post-election day ballots, already segregated and accounted for, could easily be added to the total vote tally.
The standard practice of the Court in recent years is for an individual justice to refer a stay application to the entire Court if it raises a serious issue. That is what Justice Alito did here—he referred the stay application to the entire Court. By this time, Justice Ginsburg had passed away, and Justice Barrett had not yet been appointed to the Court, meaning only 8 justices considered the application. On October 19, 2020—again, before Justice Barrett had joined the Court—the Court, in a 4-4 split, denied the stay application due to it being a tie. The order declared that Justices Thomas, Alito, Gorsuch, and Kavanaugh had voted to grant the stay application.
This denial meant that the Pennsylvania Supreme Court’s ruling would go into effect and that all votes received after election day would need to be included in the final tally while the US Supreme Court considered whether to hear the case. The Republican Party then filed its petition for a writ of certiorari on October 23, 2020. It also filed, that same day, a motion to expedite consideration and resolution of the entire case, in the hopes that the Court could come to a final ruling before election day on November 3. Again, this was prior to Justice Barrett joining the Court.
On October 28, 2020, the Court issued an order denying the motion to expedite consideration of the case. Justice Alito, however, issued a statement attached to the denial order. Justices Thomas and Gorsuch, but not Kavanaugh, joined this statement. Many have wrongly interpreted this statement to be a declaration that the Court should have expedited the matter and agreed to resolve it before election day. That is not what Alito said in his statement. Rather, Alito declared that while he agreed there was not enough time to resolve the case before election day, nothing prevented the Republican Party from re-applying to the Court following election day to ask that any ballots received post-election be segregated from those received by 8:00 pm on election day.
Critically, Justice Alito’s statement of October 28 concluded by stating, “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 [the Republican Party of Pennsylvania] from applying to this Court for relief if, for some reason, it is not satisfied with the Secretary’s guidance.” As we shall see later on, near the end of this article, it is critical to keep this final sentence of Alito’s statement in mind when we examine Alito’s subsequent order.
Why didn’t Justice Barrett take part in deciding whether to expedite ruling on the cert petition?
By this point, Justice Barrett had joined the Court, and the order included a declaration that she had not taken any part in considering the motion to expedite ruling on the cert petition. While some members of the public were surprised by her not taking part in the case, the explanation is most likely quite simple. Once Supreme Court Justices are appointed to the bench, they must still take two separate oaths before they can actually begin their work on the bench. This is nothing new—it is a tradition that has been in place since the early 1790s. The first oath is the constitutional oath, common to all federal employees. The second oath is the judicial oath, which is unique to judges. Until judges take both of these oaths, they cannot even view—let alone take part in—the internal deliberative process of the court they are about to join.
While President Trump appointed Justice Barrett on October 26, and the public saw Justice Clarence Thomas administer an oath to her that evening, what the media broadcasted from the White House that evening was Justice Barrett taking the first oath—the constitutional oath. But even after taking that oath, she was not entitled to take part in the Court’s deliberative process. She still had to take a second oath in order to begin work. She took this oath the following morning, on October 27, in a private ceremony inside the Court. Again, there was nothing unusual about this—it is part of a longstanding tradition of how new Justices are sworn in.
Given that the Court issued its denial of the motion to expedite the very next day—October 28—it is difficult to see how Justice Barrett could have familiarized herself with the legal aspects of the case in time to take part in the vote. This may seem frustrating, but it is plain reality. It has nothing to do with a purported reluctance by Justice Barrett to participate in the case.
What did Justice Alito actually do last Friday, November 5?
After election day, the Republican Party of Pennsylvania applied to Justice Alito for an order directing the Pennsylvania Secretary of State to segregate all post-election day ballots from all ballots received by 8:00 pm election day. It declared that the Pennsylvania Secretary of State had not, in fact, been implementing the guidelines for segregating ballots that it had issued on October 28, despite telling the Court itself that those guidelines would be implemented and despite Justice Alito, in his earlier statement, noting this representation by the Pennsylvania Secretary of State. Under the guidelines that the Secretary presented to the Court on October 28, the post-election day ballots would be segregated but not canvased—that is, not counted towards the final vote. But on November 1, the Secretary—without informing the Court—posted updated guidelines directing that, while post-election ballots were to continue to be segregated, such post-election ballots should also be canvased—that is, that such ballots should be counted towards the final election total.
In addition, the Republican Party’s application declared that while the Pennsylvania Secretary of State had the authority to issue guidelines to county election boards for segregating ballots, the Secretary did not actually have any legal authority to require the counties to adhere to such guidelines. The Republican Party also noted that 25 Pennsylvania county boards of elections have not declared one way or the other whether they are segregating the post-election ballots.
Justice Alito’s order last Friday, November 6, related to the above. In it, he directed all Pennsylvania county election boards to comply with both the October 28 and November 1 guidelines of the Secretary—that is, that post-election day ballots be segregated from other ballots, and “that all such ballots, if counted, be counted separately.” Justice Alito also noted that “[u]ntil today, the 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.” In addition, Justice Alito observed that the Republican Party’s “application…informs the Court that neither the applicant nor 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.”
Justice Alito concluded by stating he was referring further resolution of the application to the entire Court and directed that any response by the Secretary be filed by the next day, November 7. The Secretary responded in the following day in a short, two-paragraph letter. It declared that all 67 Pennsylvania counties have “confirmed their understanding and intention to follow” the Secretary’s guidances set out on October 28, 2020, and November 1, 2020." The letter was silent on whether or not the counties were in fact following the guidance—the letter simply declared that the counties had confirmed their intention to follow the guidance. Nor did the Secretary dispute that it had no legal authority to compel the county election boards to follow its guidance. Both the Democratic Party of Pennsylvania and the Luzerne County Board of Elections also filed responses. The Democratic Party declared that “[n]o evident reason exists for a county board to refuse to follow” the Secretary’s guidance, but likewise did not dispute that the Secretary could not legally bind the county boards of election to act in a certain way. The Luzerne County Board of Elections, in turn, declared they were following the Secretary’s guidance, but likewise did not dispute that the guidelines were not legally binding on them.
What happens next?
Both the stay application and the cert petition remain pending before the Court. It is not clear at this point how it will rule on either. The other side has until November 25 to file a response in opposition to the cert petition, but it is possible the Court may rule on it sooner than that. In addition, as noted above four Justices—Thomas, Alito, Gorsuch, and Kavanaugh—originally voted in favor of staying the mandate. Given that a stay is appropriate only if a justice thinks a reasonable chance exists for the Court to grant cert, it would seem that these four justices are in favor of granting cert here. And because only four votes are needed to grant cert, it would seem that the Court will agree to hear the case. In any event, Court will most likely rule on the stay application by the end of this week.
John M. Reeves, an appellate lawyer in St. Louis, is the founder and owner of Reeves Law LLC. A native of Chicago, he graduated from Washington University in St. Louis in 2004 with both a Bachelor of Arts and Master of Arts in History, having earned his master’s degree within four years of undergraduate study. Mr. Reeves likewise earned his law degree from Washington University in St. Louis, graduating in 2007. He spent six-and-a-half years as an Assistant Missouri Attorney General in Jefferson City, Missouri, before returning to St. Louis and entering private practice.
Mr. Reeves has authored over 250 appellate briefs, including several in the Supreme Court of the United States. Find him on Twitter @reeveslawstl