Supreme Court Spurns GOP on Second-Chance Pennsylvania Votes
(Bloomberg) -- The US Supreme Court rejected a Republican Party bid to stop potentially tens of thousands of votes from being counted in next week’s presidential election in the pivotal state of Pennsylvania.
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The rebuff leaves in force a Pennsylvania Supreme Court decision that said voters are entitled to a second chance if their mail-in ballots are invalidated because they lack the required secrecy envelope. Republicans had sought to block the ruling, which will let voters file provisional ballots on Election Day.
Blocking the decision would have been a boost to Donald Trump’s campaign – and a blow to Vice President Kamala Harris’ – given that far more Democrats vote by mail than Republicans.
The court as a whole gave no explanation, and no justice publicly dissented. But three conservative justices said they agreed with the decision for procedural reasons, noting that the case grew out of a now-completed Democratic primary in western Pennsylvania and didn’t directly involve next week’s election.
Blocking the state court ruling “would not impose any binding obligation on any of the Pennsylvania officials who are responsible for the conduct of this year’s election,” Justice Samuel Alito wrote for himself and Justices Clarence Thomas and Neil Gorsuch.
In seeking to block the ruling, Republicans pointed to the precedent it will set for the upcoming election. In addition to ballots lacking the inner secrecy envelope – known colloquially as “naked ballots” – the 4-3 Pennsylvania ruling is likely to apply to people who failed to put the required date on their mail ballot.
The order came minutes after the Pennsylvania Supreme Court in a separate case blocked the counting of undated and misdated mail-in ballots, siding with the Republican National Committee. An intermediate appeals court had said the state constitution required the counting of those ballots.
The RNC then turned to the state’s highest court, arguing that the lower court had changed voting rules too close to Election Day and undermined election integrity.
As the law stands now, those voters will also be able to cast provisional ballots in Tuesday’s election. The two court actions Friday don’t preclude the US Supreme Court from considering after the election whether the disputed votes are valid.
Democratic Ballots
Of the 1.7 million Pennsylvanians who have already cast ballots through early voting, 56% are Democrats, and 33% are Republicans, according to state figures. Democrat Joe Biden received 76% of the mail vote in 2020, with Trump getting just 23%. Biden won the state by about 80,000 votes four years ago.
The RNC and state Republican Party organization said the Pennsylvania naked ballot decision was such an egregious misinterpretation of state law that it violated the constitutional provisions governing federal elections.
The case raised what could be a pivotal issue in the upcoming election, testing how the justices will apply their 2023 decision on the so-called “independent state legislature” theory. The decision carved out an exception to the general rule that state courts determine what their own laws mean, saying the Supreme Court can overturn state judges who “transgress the ordinary bounds of judicial review” in federal election cases.
The 2023 ruling rejected the most sweeping version of the independent state legislature theory – Republican-backed arguments that the US Constitution gives state lawmakers near-exclusive power to set rules for congressional and presidential votes.
The Constitution’s elections clause says the rules for congressional races “shall be prescribed in each State by the Legislature thereof” unless overridden by Congress. A similar provision governs the appointment of presidential electors.
Provisional ballots are cast in person when there’s a question about a voter’s eligibility. After polls close, county election boards go through provisional ballots to check if those voters are, in fact, eligible. But Pennsylvania law says that if a voter’s absentee or mail-in ballot “is timely received” by a county election board, officials shouldn’t count that person’s subsequent provisional ballot.
Law’s Purpose
The state court said the goal of the law was to prevent double voting, which isn’t possible when a mail-in ballot is tossed out as defective.
The RNC told the Supreme Court that an on-time mail ballot is “timely received” — making the person ineligible to also vote provisionally — even if it turns out to be invalid. The Pennsylvania ruling “departed from the plain terms of the election code to dramatically change the rules governing mail voting,” the Republicans argued.
The RNC said the issue had implications for tens of thousands of votes. The Associated Press reported that in the 2022 midterm election, 8,250 mail-in ballots were rejected for missing the secrecy envelope.
The Pennsylvania Democratic Party urged the US Supreme Court not to intervene, saying the ruling was “miles away from the type of extreme departure from the norms of judicial decision-making that could implicate electors or elections clause concerns.”
Democrats also said Republicans lacked legal standing to press arguments about next week’s election in the context of an already completed Democratic primary.
The case is Republican National Committee v. Genser, 24A408.
--With assistance from Zoe Tillman and Erik Larson.
(Updates with background on case starting in 12th paragraph.)
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