Supreme Court gives second-chance ballot access to thousands in Pennsylvania

WASHINGTON (CN) — Days before the election, the Supreme Court handed Republicans a loss Friday in the critical swing state of Pennsylvania, refusing to block thousands of voters from casting in-person ballots. 

The court did not explain its order. Justices Samuel Alito, Clarence Thomas and Neil Gorsuch issued a statement respecting the denial. 

Alito, a George H.W. Bush appointee, said Republicans presented an important question, but the court was powerless to offer the relief they requested. 

"The lower court’s judgment concerns just two votes in the long-completed Pennsylvania primary," Alito wrote. "Staying that judgment would not impose any binding obligation on any of the Pennsylvania officials who are responsible for the conduct of this year’s election. And because the only state election officials who are parties in this case are the members of the board of elections in one small county, we cannot order other election boards to sequester affected ballots." 

The Republican National Committee asked the justices to bar voters who submitted faulty mail-in ballots from casting provisional ballots at in-person polling places. Citing a controversial legal theory dating back to Bush v. Gore, Republicans argued that the “cure process for mail-ballot errors” conflicted with state lawmakers’ authority over elections. 

Mail-in ballots can be rejected for lacking a signature, date, or in the case of two Butler County voters, a secrecy envelope that conceals ballots from election workers. The voters sued after Butler County refused to count their provisional ballots cast after the rejection. 

Pennsylvania’s high court said the voters were eligible to cast provisional ballots on Election Day since their faulty mail-in ballots were thrown out and not counted. The Democratic Party told the court that the holding was straightforward, allowing voters to exercise their right to vote instead of disenfranchising it. 

Butler County voters said Republican’s argument that the Pennsylvania Supreme Court disrupted election rules was backward. 

“It is [Republicans] who are now asking this court to enjoin dozens of county boards of elections (that are not even parties in this case) and to fashion a new statewide provisional ballot segregation regime less than one week before Election Day,” the voters wrote. 

The RNC pushed the justices to utilize their 2023 ruling in Moore v. Harper. The closely watched election case tossed out a controversial theory giving state legislatures broad authority over elections, instead choosing to give themselves jurisdiction to intervene in state election law disputes. 

“If this court fails to act in the face of such egregious judicial usurpation, Moore’s promised enforcement of the elections and electors clauses will become a dead letter that state courts can safely ignore,” the committee wrote. 

Versions of the independent state legislature theory percolated in the justices’ opinions in Bush v. Gore. The Roberts court became the first to dust off the ruling that decided the 2000 election. 

The Democratic Party opposed applying Moore in this case, arguing that the Pennsylvania Supreme Court ruled squarely within the boundaries of the state’s election laws. 

“Put simply, the Pennsylvania Supreme Court’s holding that a voter whose mail ballot is not counted may exercise her statutory right to vote provisionally (rather than being disenfranchised altogether) was a straightforward and correct interpretation of Pennsylvania law,” the party wrote. “It is miles away from the type of extreme departure from the norms of judicial decision-making that could implicate electors or elections clause concerns.” 

The RNC emphasized the stakes of the court’s ruling, declaring that the presidential election could be decided by the tens of thousands of voters seeking provisional ballot access. 

Once ballots are counted, legal challenges are mostly moot. As a backstop to their stay request, Republicans suggested that the justices order the disputed ballots to be segregated and further litigated. 

Republicans' request is among a flood of elections-related litigation weaving through the courts as voters head to the polls. The Supreme Court already decided to keep Robert F. Kennedy Jr. on ballots in the swing states of Michigan and Wisconsin despite his endorsement of former President Donald Trump. The justices also permitted Virginia to purge 1,600 voters from registration rolls. 

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