Supreme Court won’t block counting of certain provisional ballots in battleground Pennsylvania

Washington — The Supreme Court on Friday declined to freeze a decision from Pennsylvania’s highest court that required election officials to count provisional ballots cast by people whose mail ballots are invalid because they lacked mandatory secrecy envelopes.

The order from the justices means that election officials in the key battleground state must tally provisional ballots submitted on Election Day by voters who returned defective mail ballots, either because they didn’t include secrecy envelopes or failed to sign or date the outer envelope. Justice Samuel Alito issued a statement respecting the court’s denial of Republicans’ request for emergency relief and was joined by Justices Clarence Thomas and Neil Gorsuch. 

It’s unclear how many provisional ballots will be counted as a result of the Supreme Court’s order. In many counties, voters are notified when their mail ballot is likely disqualified and have the chance to request a new ballot or go to their polling places on Election Day to cast provisional ballots. 

Still, the presidential race in battleground Pennsylvania is tied, and winning the state is central to Vice President Kamala Harris and former President Donald Trump’s efforts to secure the electoral votes needed for victory.

Republicans, who sought relief from the Supreme Court, had warned that if the Pennsylvania court’s ruling was left in place, “tens of thousands” of provisional votes may be counted in a state that could decide control of the Senate and White House. They said if the justices determined a full stay of the state supreme court’s decision wasn’t warranted, they should order provisional ballots at issue to be set aside and not included in the official vote count while the legal battle plays out.

In the 2020 election, roughly 1% of returned mail ballots were rejected because they did not have secretary envelopes, according to an analysis from the MIT Election Data and Science Lab.

The Republican National Committee and Pennsylvania GOP had sought the Supreme Court’s intervention Monday, just over a week before Election Day. Millions of voters nationwide have already cast their ballots early, either in person or by mail, including in Pennsylvania, where more than 1.5 million voters have returned mail ballots, according to the University of Florida Election Lab.

“This case is of paramount public importance, potentially affecting tens of thousands of votes in a state which many anticipate could be decisive in control of the U.S. Senate or even the 2024 presidential election,” lawyers for the Republicans told the Supreme Court in a filing. “Whether that crucial election will be conducted under the rules set by the General Assembly or under the whims of the Pennsylvania Supreme Court is an important constitutional question meriting this court’s immediate attention.”

The Pennsylvania case arose after the primary election in April, when two voters from Butler County submitted mail ballots but failed to enclose them in secrecy envelopes. The state also requires voters to sign and date the mailing envelopes containing their ballots. Failure to comply with these requirements renders the mail ballot invalid and ineligible to be counted. 

Because the voters returned their ballots without secrecy envelopes, they were notified by election officials that their votes might not be counted and were advised that they could cast provisional ballots in person on Election Day, which both voters did.

But the county board of elections did not count those provisional ballots. After learning the ballots were rejected, the voters challenged the decision in state court and argued the elections board acted wrongly. The trial court disagreed, finding that the state’s election code prohibits individuals who submit mail ballots that are “timely received” from having their provisional ballots tallied, even if the mail ballots are defective. 

But the voters prevailed before the Pennsylvania Supreme Court, which ruled in a 4-3 decision that boards of elections must count provisional ballots cast by voters whose mail ballots are rejected for lacking secrecy envelopes. 

While the dispute involves voters from Butler County, the Pennsylvania Department of State reiterated in guidance last week that a provisional ballot may be issued when voters return a completed mail ballot that would be rejected and the voters believe they’re eligible to vote.

Republicans urged the Supreme Court to pause the decision from Pennsylvania’s top court, warning that if it remains in place, county boards “will be forced to ignore the Election Code’s clear mandate and count provisional ballots cast on Election Day by those who submitted defective mail ballots.”

They also argued that the state supreme court was wrong to change the rules regarding mail voting after it had started and so close to Election Day.

But lawyers for the voters said it is Republicans who are seeking to disrupt election rules in Pennsylvania by asking the Supreme Court to block dozens of county election boards from counting provisional ballots and “fashion a new statewide provisional ballot segregation regime” less than a week before Election Day.

They argued that since the Pennsylvania General Assembly expanded mail-in voting five years ago, most county election boards and state courts have counted provisional ballots cast by voters who cast mail ballots that would be deemed invalid.

Citing the RNC’s appeal to the Pennsylvania Supreme Court, which that court then resolved, the voters’ lawyers argued that the GOP now “asks a federal court to swoop in and alter the election laws of Pennsylvania, as interpreted by its Supreme Court, the majority of county election boards, and the Pennsylvania Department of State.”

They said the Republicans are asking the Supreme Court to “insert itself into state law to revive a legal regime that is less uniform and more burdensome for counties, more confusing for voters and candidates, and more unjust for all.”

The dispute over provisional ballots in Pennsylvania is one of several related to the election that the Supreme Court has been asked to intervene in. On Tuesday, the high court rejected a bid by Robert F. Kennedy, Jr., to be removed from the ballots in Michigan and Wisconsin, two battleground states. The justices on Wednesday allowed Virginia to move forward with a program that aims to remove noncitizens from its voter rolls.

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