By Arul Louis
New York, Nov 7 : The federal Supreme Court has ordered Pennsylvania to keep the postal ballots that arrived after election day separately but did not agree to the Republican Party request to stop the vote-counting in the state where Democratic Party candidate Joe Biden has overtaken President Donald Trump.
Justice Samuel Alito issued the order Friday evening on a request for an emergency order filed by the Republican Party.
It gives room for the court to decide on a pending case over the legality of a state-level court order extending the deadline for accepting postal ballots to Friday.
The Supreme Court was split evenly, four votes for each side, on the case filed last month by the Republican Party to invalidate the state court ruling and throw out the votes that arrived after election day.
When the court takes up the case again, the newly-appointed justice, Amy Coney Barrett, could tilt the balance.
If Biden wins Pennsylvania, where he was leading on Friday by over 13,000 votes, he will have more than the 270 electoral votes to win the presidency.
Rather than the popular votes, the votes in the electoral college of state representatives determine who will be president.
The Republican Party acknowledged in its Supreme Court filing that “the vote in Pennsylvania may well determine the next President of the United States”.
In a separate case in a state court has ordered election officials on Friday to stop counting some provisional votes cast on election day.
The order applies to the so-called provisional ballots, which some voters were allowed to cast to correct errors in postal ballots that they had already sent in.
Ruling on cases filed by Republican Party members, the court said that such ballots should be kept separately pending a decision, but rejected demands that they should be rejected outright.
Pennsylvania Secretary of State Kathy Boockvar said on Thursday that the late-arriving votes were being kept separately but may be counted.
Trump claimed on Thursday that he would have won but for the “illegal votes”, referring to the postal votes arriving after the polls closed.
The Supreme Court has mostly deferred to state courts on election matter because the constitution puts the responsibility for holding elections on the state legislatures.
The Republicans may be counting on a narrow reading of the constitutional provision and could argue that the federal court has jurisdiction because the extension was granted by a state court and not by the legislature as mentioned in the constitution.
Because of the Covid-19 pandemic, there has been greater use of postal ballots, with some states like California and New Jersey sending them to all registered voters.
Some states have extended the deadlines for receiving postal ballots because the large volume and post office delays.
Trump has said that the wide use postal ballots has led to abuse.
On Thursday, he accused the Democrats of trying to steal the election by using the postal ballots.
“If you count the illegal votes, they can try to steal the election from us. If you count the votes that came in late — we’re looking at them very strongly,” he said.
His claim was criticised by most of the media and politicians in his party as undermining people’s trust in elections.
Biden said, “Each ballot must be counted and that’s what is going on now. And that’s how it should be. Democracy is sometimes messy, so sometimes it requires a little patience.”
While Trump was unable to win most of the cases he has filed in state courts, there was a notable victory where a Pennsylvania court ordered election officials to allow Republican Party observers to be stationed within six feet of the counting tables to watch the process.
Officials there had stationed them far away citing danger from the coronavirus and the observers complained that they could not clearly see the ballots.
(Arul Louis can be reached at and followed on Twitter at @arulouis)