Opinions Relating to Orders - 2021

Ritter v. Migliori

The application for stay presented to JUSTICE ALITO and by him referred to the Court is denied.

The order heretofore entered by JUSTICE ALITO is vacated. JUSTICE ALITO, with whom JUSTICE THOMAS and JUSTICE GORSUCH join, dissenting from the denial of the application for stay.

This application for a stay pending certiorari involves the counting of undated mail-in ballots in one state-court judicial election. A stay pending certiorari is appropriate only if the Court is likely to grant review; certiorari is discretionary; and the Court now denies the stay. I would agree with that decision were it not for concern about the effect that the Third Circuit’s interpretation of 52 U. S. C. §10101(a)(2)(B) may have in the federal and state elections that will be held in Pennsylvania in November.

The Third Circuit’s interpretation broke new ground, and at this juncture, it appears to me that that interpretation is very likely wrong. If left undisturbed, it could well affect the outcome of the fall elections, and it would be far better for us to address that interpretation before, rather than after, it has that effect. I would therefore enter a stay pending certiorari and advise that any petition for certiorari and brief in opposition should be filed expeditiously. If that is done, the Court will be in a position to grant review, set an expedited briefing schedule, and if necessary, set the case for argument in October.