Court declines RNC’s request to intervene in Pennsylvania Voting Dispute
EMERGENCY DOCKET
On Friday night, the Supreme Court left in place a ruling by Pennsylvania’s highest court that requires election boards to count provisional ballots submitted by voters whose mail-in ballots had been deemed invalid. (Katie Barlow).
The Supreme Court left in place on Friday night a ruling made by Pennsylvania’s highest courts that requires election boards to count provisional votes submitted by voters who had their mail-in ballots deemed invalid.
The short unsigned order was issued just four days before the election. Recent polls have shown that former President Donald Trump, and Vice President Kamala Harris are tied in Pennsylvania. Both candidates consider Pennsylvania to be a crucial part of their chances of winning the White House. The Republican National Committee (RNC) and the Republican Party of Pennsylvania (RPP), which sought to block the ruling of the Pennsylvania Supreme Court by arguing that it could affect “tens of thousand votes,” told the justices their decision could have a significant impact. However, at least one voting expert believes the number of ballots could be relatively small. He agreed that the state’s supreme court’s interpretations of the state’s election code are “a matter of considerable significance” for the election next week. He explained that because the Supreme Court could not “prevent” the consequences that the Republican National Committee (RNC) and the Pennsylvania Republican Party (PRP) fear, it was his decision to deny their request to delay the state supreme courts decision. Voters place their ballots in an envelope called the “secrecy envelope” before returning it to the election board. When the packet is received by the election board, it is scanned using a ballot-sorting device. Two voters who cast provisional votes in Pennsylvania’s Democratic primary 2024 went to state court after their ballots weren’t counted. The Pennsylvania Supreme Court, divided, agreed with the two voters that, as long as the mail-in votes were not counted by the election board, they must count their provisional voting ballots. The Pennsylvania Supreme Court went too far, they said. Although the Supreme Court made it clear in Moore v. Harper that state courts could still supervise the exercise of this power by the legislature, they said. “When the legislature says that certain ballots can never be counted,” they told the justices, “a state court cannot blue-pencil that clear command into always.”
The state court’s decision also came less than two weeks before election day, they added – a violation of the Purcell principle, the idea that courts should not change election rules during the period just before an election.
Both the Pennsylvania Democratic Party and the voters who brought the original lawsuit urged the justices to leave the Pennsylvania Supreme Court’s decision in place. The RNC and the Pennsylvania Republican Party do not have a legal right to sue, known as standing, they contended, because the dispute arises from the Democratic primary earlier this year – an election that has already occurred, and in which they did not participate.
The Supreme Court should also stay out of the dispute, they continued, because the RNC and the Pennsylvania Republicans didn’t properly raise their constitutional challenge in the state courts. They wrote that the Pennsylvania Supreme Court’s conclusion that their challenge had been waived was the type of “adequate” and “independent” state law ruling the Supreme Court could not review. They said that the state supreme was interpreting the state election code. The Pennsylvania Democratic Party said that the state supreme courts ruling was “miles away” from any extreme departure from judicial decision making norms that could raise constitutional concerns. To the contrary, “most Pennsylvania courts–and county boards of elections across the Commonwealth–that considered this issue have reached the same conclusion.”
Finally, the Pennsylvania Democratic Party and the voters pushed back against any suggestion that the state supreme court’s decision violated the Purcell principle. Purcell is a principle that limits the power of state courts, not federal ones, because it rests on concerns over the division of powers between national and state governments. Putting the Pennsylvania Supreme Court’s decision on hold now would itself be a violation of Purcell.
Moreover, they continued, because in recent years most election boards have counted provisional ballots submitted by voters in cases like this one, the Pennsylvania Supreme Court’s decision would preserve the status quo and therefore “prevents rather than engenders the voter confusion Purcell seeks to avoid.”
In a one-sentence order released just after 6:30 p.m. on Friday night, the Supreme Court denied the Republicans’ request to block the Pennsylvania Supreme Court’s order. Consistent with its general practice in emergency appeals, the court did not provide any explanation for its decision.
Alito, joined by Thomas and Gorsuch, wrote a two-paragraph statement in which he observed that the Pennsylvania Supreme Court’s interpretation of the state’s election code was “controversial” and that he was not weighing in on whether that interpretation violates the Constitution.
Instead, Alito emphasized, because the “lower court’s judgment concerns just two votes in the long-completed Pennsylvania primary,” putting it on hold “would not impose any binding obligation on any of the Pennsylvania officials who are responsible for the conduct of this year’s election.”
Moreover, he added, the only litigants in this case “are the members of the board of elections in one small county”; the Supreme Court cannot direct other election boards to set aside provisional ballots that could ultimately be affected by the state supreme court’s decision.
This article was originally published at Howe on the Court.
