https://www.foxnews.com/opinion/election-2020-supreme-court-andrew-mccarthy
What happens if they don’t do it?
That was a question I posed during Fox News coverage of the 2020 election and the developing litigation landscape that surrounds it. That is, what if, after representing to the U.S. Supreme Court that it would segregate late-arriving ballots, Pennsylvania’s county election boards failed to keep their promise – co-mingling and counting the ballots that came in from November 4 through 6, pursuant to a state court order, with those received on or before November 3, the Election Day deadline prescribed in law by the state legislature?
The question required posing because of the Supreme Court’s maddening timidity. The Court – or, at least, three justices of the Court – had cajoled Pennsylvania state officials to agree to segregate the late-arriving ballots in order to preserve the high court’s ability to rule on their legality post-election. But the Court did not order the segregation. Instead, it relied on the good faith of state officials to both direct election boards in Pennsylvania’s 67 counties to segregate the ballots, and to see that the election boards complied.
Finally, on Friday night, Justice Samuel Alito went beyond merely encouraging the state to segregate the ballots. He issued a formal order that it be done.
This is not the way a court normally works, let alone the nation’s top judicial tribunal. Why didn’t the Supreme Court order the segregation days ago, even weeks ago?
Well, because the court hasn’t even decided to review the case.
Justice Alito, joined by Justices Clarence Thomas and Neil Gorsuch, did the best they could to nudge Pennsylvania officials into doing the right thing. But they are playing a weak hand because of Machiavellian maneuvering by Chief Justice John Roberts. Acting more like a risk-averse politician than a jurist, the chief justice is trying to keep the Court out of cases that might impact the 2020 election.