The US Supreme Court rejected Friday an RNC application to stay a recent Pennsylvania Supreme Court decision that grants voters who cast defective mail-in ballots an option to alternatively cast in-person provisional ballots.
The RNC claimed the state supreme court ruling violated the Pennsylvania Election Code, the Pennsylvania Constitution, and the US Constitution. However, the Supreme Court denied the application, ruling that the scope and direction of the case deflect urgency from an otherwise salient issue. Justice Samuel Alito explained:
The application… is a matter of considerable importance, but even if we agreed with the applicants’ federal constitutional argument… we could not prevent the consequences they fear… 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 case in question involved two Pennsylvania voters who submitted deflective mail-in ballots ahead of state primary elections earlier this year. The individuals received an email notice of the defective ballots and each appeared at their respective polling places hoping to alternatively cast a provisional ballot.
However, election officials blocked the voters from casting provisional ballots to cure the defective mail-ins. The voters brought suit, claiming they were wrongfully disenfranchised from the voting process.
The case worked its way up to the Pennsylvania Supreme Court, which decided on October 23 that “the casting of a provisional ballot is specifically authorized in the [state] Election Code” and that “[p]rovisional ballots exist as a failsafe to preserve access to the right to vote.”
Parties to the opinion jousted over how to interpret Election Code language. The RNC argued that the statute only permits notice and cure for mail-in voters when a ballot is not submitted and that mail-in voters bear the responsibility to file their ballots accurately and timely. The RNC also relied on a 2020 state case, Pennsylvania Democratic Party v. Boockvar, which put notice and cure requirements for mail-in ballots squarely under state legislature discretion.
However, the Pennsylvania Supreme Court distinguished this case, holding that statutory provisions governing provisional ballots are distinct from those governing notice and cure requirements:
[T]he right to cast a provisional ballot is not just authorized by the Election Code, our General Assembly implemented [a provisional ballot] mandate in 2002, long before… no-excuse mail-in voting… no ballot is cured when a provisional ballot is counted after a mail ballot is rejected due to a fatal defect… (emphasis added).
Congress mandated statewide provisional ballot use through the Help America Vote Act, following the voting controversies of the 2000 election. At a minimum, provisional voting mandates allow voters a chance to submit a ballot while election officials decide whether the person is eligible to vote.
