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2019 0322 morrisey (copy)

West Virginia Attorney General Patrick Morrisey.

State Attorney General Patrick Morrisey has joined West Virginia in a legal fight to halt the counting of late mail and absentee ballots in Pennsylvania.

The wrangling centers on ballots received after Election Day. A Pennsylvania Supreme Court ruling allows election officials to count ballots received up to three days later so long as they were postmarked Nov. 3. Republicans want the U.S. Supreme Court to overturn that decision. Morrisey signed a brief authored by Republican Oklahoma Attorney General Mike Hunter as part of the appeal. GOP attorneys general from Indiana, Kansas, Nebraska and Tennessee also signed the brief.

Both cases deal with whether the court can determine election deadlines regarding mailed ballots and whether the state court’s ruling interferes with the federal law that established a national Election Day in the United States.

Pennsylvania offers absentee voting for people who cannot vote in person because of a disability or illness, according to the Commonwealth of Pennsylvania website. Pennsylvania also offers mail-in voting for any registered voter who prefers to vote by mail. Absentee and mail-in ballots in the state may be returned by mail, certified dropbox locations or at county elections offices.

State law requires those ballots be returned to election officials by 8 p.m. Election Day. In September, however, the Pennsylvania Supreme Court granted a three-day extension, saying ballots with a Nov. 3 postmark returned to election officials by 6 p.m. Nov. 6 would be counted because of the increased volume of absentee votes and delivery troubles at the U.S. Postal Service.

In the brief signed by Morrisey, the attorneys general said Pennsylvania’s highest court erred by ruling in the case. They argue that legislatures, not courts, determine election deadlines.

“Pennsylvania’s legislature wrote clear instructions concerning the deadlines for absentee ballots,” Morrisey said in a news release Tuesday. “Now its Supreme Court has decided it knows better than elected lawmakers. We absolutely urge the U.S. Supreme Court to review this case without delay.”

The attorneys general also argue that steps taken by election officials to accommodate voters amid the COVID-19 pandemic are not grounds to violate state law.

“At most, COVID-19 is now part of the ‘usual burden on voting’ that arises ‘out of life’s vagaries,’ and thus not a burden that renders a state law unconstitutional,” Hunter wrote in the brief.

News outlets throughout the United States, including The Associated Press, have called Pennsylvania for President-elect Joe Biden.

In their brief, the six attorneys general said it’s irrelevant how many mail-in and absentee votes remained uncounted.

As of 3:45 p.m. Tuesday, mail-in votes for Biden topped those for President Donald Trump by more than three times, according to the Pennsylvania Department of State website.

The unofficial election results for the state showed Biden with 3,367,176 votes, 1,407,299 from in-person voting on Election Day, 1,955,134 from mail-in and absentee ballots and 4,743 from provisional ballots.

Trump had tallied 3,320,191 votes, 2,727,785 cast in-person on Election Day and 585,392 from mail-in and absentee ballots. He picked up 7,014 votes from provisional ballots.

Reach Lacie Pierson at

lacie.pierson@wvgazettemail.com, 304-348-1723 or follow

@laciepierson on Twitter.