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The Supreme Court on Friday night left in place a ruling by Pennsylvania’s highest court that requires election boards in the state to count provisional ballots submitted by voters whose mail-in ballots had been deemed invalid.
The brief 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 regard as a key part of their hopes of winning the White House. The Republican National Committee and the Republican Party of Pennsylvania, which had sought to block the ruling by the Pennsylvania Supreme Court, told the justices that their decision could affect “tens of thousands of votes,” but at least one voting rights expert believes that 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) regarding 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 “prevent the consequences” that the Republican National Committee and the Pennsylvania Republican Party fear, he explained, he agreed with the decision to deny the Republicans’ request to put the state supreme court’s decision on hold.
The dispute arises from the two-envelope format that 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 in a second envelope, known as the “declaration” envelope, that the voters must sign and date before returning the entire packet to the election board.
When the election board receives the packet, 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 ballot.
Two voters who cast provisional ballots in Pennsylvania’s 2024 Democratic primary went to state court when their ballots were not counted. A divided Pennsylvania Supreme Court agreed with them that as long as their mail-in ballots were not counted, the election board was required to count their provisional ballots.
The Republican National Committee and the Pennsylvania Republican Party came to the Supreme Court on Monday, asking the justices to put the state supreme court’s ruling on hold to give them time to file a petition for review.
The RNC and the Pennsylvania Republicans argued that the state supreme court’s order ran afoul of the Constitution, which gives state legislatures the power to regulate federal elections. Although the Supreme Court last year in Moore v. Harper made clear that state courts can still supervise the legislature’s exercise of that power, they said, the Pennsylvania Supreme Court in this case went too far. “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. The Pennsylvania Supreme Court’s conclusion that their 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 event, the Pennsylvania Democratic Party and the voters told the justices, 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. Indeed, the Pennsylvania Democratic Party emphasized, the state supreme court’s ruling “is miles away from the type of extreme departure from the norms of judicial decision-making that could implicate” 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. Because it rests on concerns about the division of power between national and state governments, they argued, the Purcell principle limits the power of federal – not state – courts. 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.
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