The U.S. Supreme Court. (Win McNamee/Getty Images)
The U.S. Supreme Court on Friday ruled that voters in Pennsylvania will be able to submit provisional ballots if their mail ballots have been found defective, rejecting requests from the Republican National Committee and Republican Party of Pennsylvania to issue a stay against a state Supreme Court decision.
“The lower court’s judgment concerns just two votes in the long-completed Pennsylvania primary,” Justice Samuel Alito wrote in the decision. “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. For these reasons, I agree with the order denying the application.”
The RNC and RPP had asked Alito to issue a stay that would have prevented county election officials from being required to count provisional ballots from voters whose mail ballots were fatally flawed. They also sought to have any such provisional ballots that were cast to be segregated until the court could decide on the issue.
The RNC and RPP filed a similar request last week in the state Supreme Court.
The case at issue, Faith Genser et al vs. the Butler County Board of Elections, involves Butler County voters who discovered their mail-in ballots might not be counted, and tried to vote in person using provisional ballots on Election Day. They had failed to put their ballots in the required secrecy envelope, and elections officials told them their ballots would be canceled.
When the voters tried to cast the provisional ballots, the board of elections refused to count them, on the grounds that the Pennsylvania Election Code says provisional ballots from voters whose mail-in ballots are “timely received” can’t be counted even if the voters’ mail-in ballots are rejected.
The state Supreme Court ruled Oct. 23 in a 4-3 decision that the Butler County Board of Elections should have counted the provisional ballots. The state Election Code requires county elections officials to count provisional ballots if no other ballot is attributable to the voter, and as long as there are no other issues that would disqualify their provisional ballot, Justice Christine Donohue wrote in the majority opinion.
In their petition, the RNC and RPP argued the Pennsylvania Supreme Court majority’s ruling usurps the Pennsylvania Legislature’s authority to direct the appointment of presidential electors and to set the “times, places and manner” for congressional elections, leaning on a premise known as the “independent state legislature theory.” That theory asserts that the U.S. Constitution reserves the authority to set the times, places and manner of elections exclusively for state legislatures.
The American Civil Liberties Union of Pennsylvania, which brought the case on behalf of the voters, celebrated the decision on Friday.
“A petty error that is irrelevant to a person’s eligibility to vote should never interfere with the counting of ballots, and provisional ballots are a decades-old failsafe, a back up, for voters,” Witold Walczak, legal director of the ACLU of Pennsylvania, said in a statement. “We’re grateful that the RNC’s argument has failed and that voters can count on provisional ballots as a way to make sure that their vote counts.”
Still pending before the state Supreme Court is a case from Washington County in which the board of elections adopted a policy of not informing voters if their mail ballots had been rejected. That deprived more than 200 voters of the opportunity to challenge the rejections, request new ballots or cast provisional ballots.
The Commonwealth Court ruled in favor of the voters saying “the current Policy emasculates the Election Code’s guarantees by depriving voters – like Electors herein – the opportunity to contest their disqualification or to avail themselves of the statutory failsafe of casting a provisional ballot.”
The RNC did not immediately reply to a request for comment Friday evening.
The state Supreme Court has twice in the last month declined to decide whether a requirement for voters to write date on the return envelope of their mail ballots infringes on the fundamental rights of voters whose ballots are rejected.
Ben Geffen, senior attorney with the Public Interest Law Center which also represented the voters, said Friday “The U.S. Supreme Court’s denial of the stay supports the Pennsylvania Supreme Court’s decision that all qualified voters deserve a chance to vote, even if they have made a technical error on their mail ballot. This is a step toward a more inclusive election process that respects the rights of all Pennsylvanians.”
Peter Hall of the Capital-Star staff contributed