Supreme Court issues flurry of last-minute election orders

Litigation Reports

North Carolina, yes. Pennsylvania, yes. Wisconsin, no. That’s how the Supreme Court has answered questions in recent days about an extended timeline for receiving and counting ballots in those states. In each case, Democrats backed the extensions and Republicans opposed them. All three states have Democratic governors and legislatures controlled by the GOP.

At first blush, the difference in the outcomes at the Supreme Court seems odd because the high court typically takes up issues to harmonize the rules across the country. But elections are largely governed by states, and the rules differ from one state to the next.

A big asterisk: These cases are being dealt with on an emergency basis in which the court issues orders that either block or keep in place a lower-court ruling. But there is almost never an explanation of the majority’s rationale, though individual justices sometimes write opinions that partially explain the matter

There also is a difference in how the justices act based on whether they are ruling on a lawsuit that began in state or federal court.

Conservative justices who hold a majority on the Supreme Court object to what they see as intrusions by federal judges who order last-minute changes to state election rules, even in the middle of the coronavirus pandemic. The power to alter absentee ballot deadlines and other voting issues rests with state legislatures, not federal courts, according to the conservative justices.

The court also is divided, but so far has been willing to allow state courts interpreting their own state constitutions to play more of a role than their federal counterparts.

Last week, four conservative justices would have put on hold a Pennsylvania Supreme Court ruling allowing three additional days to receive and count mailed ballots. Three justices in Wednesday’s order about North Carolina’s absentee ballots would have blocked a six-day extension.

The justices did not finally resolve the legal issues involved, but they could do so after the election. A more thorough examination could come either in a post-election challenge that could determine the presidential winner if, for example, Pennsylvania proves critical to the national outcome, or in a less tense setting that might not affect the 2020 vote, but would apply in the future.

Related listings

  • US to get 9th justice with Dems powerless to block Barrett

    US to get 9th justice with Dems powerless to block Barrett

    Litigation Reports 10/27/2020

    A divided Senate is set to confirm Amy Coney Barrett to the Supreme Court, giving the country a ninth justice Monday as Republicans overpower Democratic opposition to secure President Donald Trump’s nominee the week before Election Day. Democra...

  • Trump, Biden lawyer up, brace for White House legal battle

    Trump, Biden lawyer up, brace for White House legal battle

    Litigation Reports 10/24/2020

    President Donald Trump’s and Democratic rival Joe Biden’s campaigns are assembling armies of powerful lawyers for the possibility that the race for the White House is decided not at the ballot box but in court. They have been engaging in ...

  • Despite rhetoric, GOP has supported packing state courts

    Despite rhetoric, GOP has supported packing state courts

    Litigation Reports 10/20/2020

    Republican claims that Democrats would expand the U.S. Supreme Court to undercut the conservative majority if they win the presidency and control of Congress has a familiar ring. It's a tactic the GOP already has employed in recent years with state s...

USCIS to Continue Implementing New Policy Memorandum on Notices to Appear

U.S. Citizenship and Immigration Services (USCIS) is continuing to implement the June 28, 2018, Policy Memorandum (PM), Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens (PDF, 140 KB).

USCIS may issue NTAs as described below based on denials of I-914/I-914A, Application for T Nonimmigrant Status; I-918/I-918A, Petition for U Nonimmigrant Status; I-360, Petition for Amerasian, Widow(er), or Special Immigrant (Violence Against Women Act self-petitions and Special Immigrant Juvenile Status petitions); I-730, Refugee/Asylee Relative Petitions when the beneficiary is present in the US; I-929, Petition for Qualifying Family Member of a U-1 Nonimmigrant; and I-485 Application to Register Permanent Residence or Adjust Status (with the underlying form types listed above).

If applicants, beneficiaries, or self-petitioners who are denied are no longer in a period of authorized stay and do not depart the United States, USCIS may issue an NTA. USCIS will continue to send denial letters for these applications and petitions to ensure adequate notice regarding period of authorized stay, checking travel compliance, or validating departure from the United States.