The upshot is that Trump’s lawyers could still ask the justices to vote yet again on whether to stay the Pennsylvania Supreme Court’s ruling and stop the counting — thus effectively giving the states electors to Trump. This time the decision would come before nine justices, not eight, because Barrett has now joined the court.
We know that Roberts and the three liberals would vote to leave the Pennsylvania order in place. And we have strong reason to think that the four justices conservatives who already voted to overturn the Pennsylvania Supreme Court’s decision would do so again.
Assuming they do, the deciding vote would be Barrett’s.
There is a strong presumption that courts shouldn’t intervene to change the rules in election disputes right before the voting or in the middle of it. The rules shouldn’t be changed in the middle of the game.
So it would be an outrage if Barrett voted to overturn the Pennsylvania State Supreme Court’s ruling and stop the counting of votes received after Election Day. Indeed, the outrage would be worse than in Bush v. Gore. Then, the Supreme Court stopped a recount. This time, the court would be stopping the count itself. That could disenfranchise Pennsylvanians who mailed their ballots after the U.S. Supreme Court’s October 19 ruling leaving the vote-counting deadline in place.
