The court denies the RNC’s request to intervene in the Pennsylvania voting dispute

EMERGENCY DOCKET

(Katie Barlow)

The Supreme Court on Friday night upheld a ruling by Pennsylvania’s highest court requiring election boards in the state to count provisional ballots sent in by voters whose mail-in ballots were deemed invalid.

The short, unsigned order came just four days before Election Day. Recent polls show former President Donald Trump and Vice President Kamala Harris tied in Pennsylvania, which both candidates see as a key part of their hopes of winning the White House. The Republican National Committee and the Republican Party of Pennsylvania, which had tried to block the Pennsylvania Supreme Court’s ruling, told the justices that their decision could affect “tens of thousands of votes,” but at least one voting rights expert believes the number of ballots at stake could be relatively low.

Justice Samuel Alito wrote a brief opinion (joined by Justices Clarence Thomas and Neil Gorsuch) on the court’s order. He agreed that the Supreme Court’s interpretation of the state election code is “a matter of significant importance” for next week’s election. But because the Supreme Court cannot prevent the consequences that the Republican National Committee and the Republican Party of Pennsylvania fear, he explained, he agreed to grant the Republicans’ request to overturn the state Supreme Court’s decision to suspend, to reject.

The dispute stems from the two-envelope format Pennsylvania uses for its mail-in ballots. Voters first place their ballot in an envelope, known as the “secrecy” envelope. The secrecy envelope then goes into a second envelope, known as the “declaration envelope,” which voters must sign and date before returning the entire package to the board of elections.

When the election board receives the package, it is scanned by a ballot sorting machine. If the machine determines that a voter has left out the secrecy envelope and left the ballot “naked,” the voter is notified that he can go to the polls on Election Day to cast a provisional ballot.

Two voters who cast provisional ballots during Pennsylvania’s 2024 Democratic primary went to state court when their ballots weren’t counted. A divided Pennsylvania Supreme Court agreed with them that as long as their mail-in ballots were not counted, the Board of Elections must count their provisional ballots.

The Republican National Committee and the Republican Party of Pennsylvania went before the Supreme Court on Mondayasking the justices to suspend the state Supreme Court’s ruling so they have time to file a petition for review.

The RNC and Pennsylvania Republicans argued that the Supreme Court’s order violated the Constitution, which gives state legislatures the power to regulate federal elections. Although the Supreme Court last year in Moore to Harper made clear that state courts can still oversee the legislature’s exercise of that power, they said, the Pennsylvania Supreme Court went too far in this case. “When the Legislature says certain ballots can never be counted,” they told the justices, “a state court cannot always blue-pencil that clear order.”

The state court’s decision also came less than two weeks before Election Day, she added — a violation of the Purcell principlethe idea that courts should not change election rules in the period immediately before elections.

Both the Democratic Party of Pennsylvania and the voters who filed the original lawsuit urged the justices to uphold the Pennsylvania Supreme Court’s decision. The RNC and the Republican Party of Pennsylvania have no legal right to file a lawsuit, known as standing, they argued, because the dispute stems from the Democratic primary earlier this year — an election that has already taken place and in which they did not participate.

The Supreme Court should also stay out of the dispute, they continued, because the RNC and Pennsylvania Republicans had not properly raised their constitutional challenge in the state courts. The Pennsylvania Supreme Court’s conclusion that their challenge was therefore waived is the kind of “adequate and independent” constitutional law rulings that the Supreme Court cannot review, they wrote.

But in any case, the Pennsylvania Democratic Party and voters told the justices, the Pennsylvania Supreme Court’s decision did not violate the Constitution. Instead, they said, the state Supreme Court simply interpreted the state’s election code. The Pennsylvania Democratic Party emphasized that the state Supreme Court’s ruling is “miles away from the kind of extreme departure from the norms of judicial decision-making that could imply constitutional challenges.” To the contrary, “most courts in Pennsylvania – and county election boards across the Commonwealth – that have addressed this issue have reached the same conclusion.”

Finally, the Pennsylvania Democratic Party and voters resisted any suggestion that the Supreme Court’s decision violated the Purcell Principle. Because it rests on concerns about the distribution of power between national and state governments, they argued Purcell This principle limits the power of federal – not state – courts. Suspending the Pennsylvania Supreme Court’s decision now would itself be a violation of the Pennsylvania Supreme Court’s ruling Purcell.

Moreover, they continued, because most election boards in recent years have counted provisional ballots sent in by voters in cases like this one, the Pennsylvania Supreme Court’s decision would maintain the status quo and therefore “create confusion among voters who Purcell tries to avoid, prevent rather than cause. ”

In a one-sentence order released Friday evening just after 6:30 p.m., the Supreme Court denied Republicans’ request to block the Pennsylvania Supreme Court’s order. In accordance with its general practice in urgent appeals, the court did not provide any explanation for its decision.

Alito, joined by Thomas and Gorsuch, wrote a two-paragraph statement noting that the Pennsylvania Supreme Court’s interpretation of state election law was “controversial” and did not address whether that interpretation violates the Constitution.

Instead, Alito emphasized, because “the lower court’s ruling concerns only two votes in the long-completed Pennsylvania primary,” suspending it “would not impose any binding obligation on the Pennsylvania officials responsible for the conduct of this year’s elections.” election.”

Furthermore, he added, the only litigants in this case are “the members of the election board in a small county”; the Supreme Court cannot order other election boards to set aside provisional ballots that could ultimately be affected by the Supreme Court’s decision.

This article was originally published on Howe on the Court.