Republicans are asking the Supreme Court to halt a decision from Pennsylvania that allows voters to cast provisional ballots after they’ve improperly submitted mail-in ballots.
At the very least, the RNC argued, the justices should segregate provisional ballots received from individuals with defective mail-in ballots.
U.S. Supreme Court Justice Samuel Alito has requested a response to the application from Republicans by 4 p.m. ET on Oct. 30.
Meanwhile, Chief Justice John Roberts asked for a response to another emergency request from Virginia, which is seeking to halt a preliminary injunction the Department of Justice secured against the state’s attempt to purge non-citizens from its voter rolls.
Pennsylvania’s case centers on a provision of state law that says a “provisional ballot shall not be counted if [a voter’s] absentee ballot or mail-in ballot is timely received by a county board of elections.”
Two voters in Pennsylvania had submitted mail-in ballots where their ballots were not enclosed in secondary “secrecy envelopes” inside outer envelopes containing the date and voter information, as required under state law, prompting the state’s automated system to notify them their ballots wouldn’t be counted.
They later cast provisional ballots but were similarly told those weren’t counted either.
The RNC, which intervened during a lawsuit the voters brought against Butler County, said that state law plainly prevents a voters’ provisional ballot from being counted after the county receives their mail-in ballot—even if that ballot was improperly submitted without the secrecy envelope.
“Because Electors failed to comply with the mandatory Secrecy Envelope requirement, they failed to cast a ballot,” the majority said.
Unlike Virginia’s case, the Pennsylvania case arose out of a series of decisions by state courts. The RNC told the U.S. Supreme Court, which is a federal court, that it should take up the case in part because the state supreme court’s ruling was “so unreasonable that it violates the Elections and Electors Clauses of the U.S. Constitution.”
Those two clauses generally vest states with authority over their elections, including for federal offices. According to the RNC, the state supreme court effectively usurped the authority of the Pennsylvania General Assembly to change state voting law.
Both Virginia and Pennsylvania are asking the U.S. Supreme Court to consider applying the Purcell principle, which is a legal doctrine generally cautioning against last-minute changes to election procedures.
It’s unclear how late a change can be for it to be determined inappropriate under U.S. Supreme Court precedent but the RNC told the court that “[w]herever the temporal line barring last-minute judicial rule changes lies, the ruling below plainly crossed it.” It also said “chaos” is impending without intervention from the supreme court.
The state supreme court’s majority denied that chaos would ensue if provisional votes were cast by individuals like the ones involved in the lawsuit. “The procedures for counting provisional ballots cast by putative mail in voters are designed to preclude double voting,” the majority said.
The state supreme court also raised concerns about the state constitution, saying that “[i]t is difficult to discern any principled reading of the Free and Fair Election Clause that would allow the disenfranchisement of voters as punishment for failure to conform to the mail-in voting requirements when voters properly availed themselves of the provisional voting mechanism.”
