EMERGENCY FILE

(Katie Barlow)

The Supreme Court on Friday night left in place a ruling by Pennsylvania’s highest court requiring the state’s election boards to count provisional ballots submitted by voters whose mail-in ballots have been deemed invalid.

The brief unsigned order It arrived 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 Pennsylvania Republican Party, 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 vote believes that the number of votes 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 state Supreme Court’s interpretation of the state election code “is a matter of considerable importance” for next week’s election. But because the Supreme Court cannot “avoid the consequences” that the Republican National Committee and the Pennsylvania Republican Party fear, he explained, he agreed with the decision to deny Republicans’ request to stay the state supreme court’s decision.

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 a “secrecy” envelope. The secrecy envelope then goes into a second envelope, known as a “declaration” envelope, which voters must sign and date before returning the completed package to the board of elections.

When the board of elections receives the package, it is scanned by a ballot sorting machine. If the machine determines that a voter omitted the secrecy envelope, leaving the ballot “naked,” then the voter is notified that they can go to the polls on Election Day to cast a provisional vote.

Two voters who cast provisional ballots in the 2024 Democratic primary in Pennsylvania went to state court when their votes were not 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 Pennsylvania Republican Party went to the Supreme Court on Monday.asking the justices to stay the state supreme court’s ruling to give them time to file a petition for review.

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

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

Both the Pennsylvania Democratic Party and the voters who filed 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 the legal right to sue, known as standing, they argued, because the dispute arises from the Democratic primary earlier this year, an election that has already occurred and in which no they participated.

The Supreme Court should also stay out of the dispute, they continued, because the RNC and Pennsylvania Republicans did not adequately raise their constitutional challenge in state courts. The Pennsylvania Supreme Court’s conclusion that its challenge has therefore been waived is the kind of “adequate and independent” state law ruling that the Supreme Court cannot review, they wrote.

But in any case, the Pennsylvania Democratic Party and voters told the justices that the Pennsylvania Supreme Court’s decision did not violate the Constitution. Instead, they said, the state supreme court was simply interpreting the state’s election code. In fact, the Pennsylvania Democratic Party noted, the state Supreme Court’s ruling “is a far cry from the kind of extreme departure from judicial decision-making norms that might raise” constitutional concerns. On the contrary, “the majority of Pennsylvania courts (and county boards of elections throughout the Commonwealth) that have considered this question have reached the same conclusion.”

Ultimately, the Pennsylvania Democratic Party and voters rejected any suggestion that the state supreme court’s decision violated the Purcell principle. Because it is based on concerns about the division of power between national and state governments, they argued, the purcell This principle limits the power of federal, not state, courts. Leaving the Pennsylvania Supreme Court’s decision in abeyance would itself be a violation of purcell.

Furthermore, they continued, because in recent years most boards of elections 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 generating the voter confusion that Purcell seeks to avoid.” “

In a one-sentence order released shortly after 6:30 p.m. Friday night, the Supreme Court denied 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, along with Thomas and Gorsuch, wrote a two-paragraph statement in which he noted 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 ruling concerns only two votes in the Pennsylvania primary that were long completed,” suspending them “would not impose any binding obligation on any of Pennsylvania’s officials.” who are responsible for the conduct of this year’s elections. choice.”

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

This article was originally published on Howe on the Court.