The Supreme Court on Friday evening cleared the way for some voters in Pennsylvania whose mail-in ballots had been deemed invalid to cast provisional ballots in person, rejecting an appeal by Republicans not to count such votes.
The decision was unsigned and gave no reasoning, which is common in such emergency petitions.
The decision could affect thousands of mail-in ballots in a state that is crucial to each party’s path to victory in the presidential contest and could be consequential in determining control of the Senate. The latest polls show Vice President Kamala Harris and former President Donald J. Trump virtually tied there, and their campaigns have poured more money and time into Pennsylvania than any other state.
The ruling, which thrust the justices into a hotly contested legal fight in a critical battleground state, was among a flurry of decisions by the court this week related to the presidential election.
On Tuesday, the court refused to allow Robert F. Kennedy Jr., who suspended his independent bid for the White House in August, to remove himself from the ballot in Wisconsin and Michigan, two other major swing states. On Wednesday, the justices cleared the way for Virginia to purge about 1,600 registered voters who state officials claim may be ineligible because they were flagged in state databases as noncitizens.
At issue in Pennsylvania is whether voters who erred in submitting their absentee ballots should be allowed to cast provisional ballots in person. The absentee ballots were deemed invalid because voters did not sheath them in secrecy sleeves, as is required under state law, before mailing them.
Republicans had repeatedly indicated they would appeal to the Supreme Court, asking it to reject the provisional ballots and saying that the decision should be left to the state legislature alone.
Lawyers for the voters argue that the problems with those mail-in ballots can be fixed by casting provisional ballots, ensuring that the votes can be counted. They say the issue is within the jurisdiction of the state’s highest court.
Last week, a divided Pennsylvania Supreme Court ruled that voters whose ballots were rejected for failure to use the secrecy sleeves could cast provisional ballots. In a 4-to-3 ruling, the court concluded that officials in Butler County, in the western part of the state, must accept provisional ballots cast by two voters after they realized that their mail-in ballots had been rejected because they did not have secrecy sleeves.
Both the Republican National Committee and the Republican Party of Pennsylvania had contended that Butler County officials should reject the provisional ballots.
The state court, lawyers for the Republicans said, had ignored Pennsylvania’s election law “to dramatically change the rules governing mail voting” after millions in the state had already cast their ballots.
The lawyers, in their brief to the court, added that the Pennsylvania court had overstepped its bounds, taking on a power that belonged only to the state legislature, which sets the election law. A section of the law, they said, states that a provisional ballot “shall not be counted” if a mail ballot is “timely received by a county board of elections.”
They argued that the plain meaning of that language bars a process to remedy mail-ballot errors like a ballot that is missing a secrecy envelope, also called a naked ballot.
“When the legislature says that certain ballots can never be counted, a state court cannot blue-pencil that clear command into always,” the lawyers asserted in their brief.
They added that the Pennsylvania court had erred by deciding so close to the election a case “of paramount public importance” where the outcome could tilt control of the Senate or the presidential race.
The Republican argument rests, in part, on a legal theory known as the “independent state legislature” doctrine, which posits that the Constitution gives state legislatures virtually unchecked power to set rules for federal elections.
The Supreme Court rejected that theory in 2023 in Moore v. Harper, though some election law experts had cautioned that the decision also elevated the power of federal courts, opening the way for them to second-guess at least some rulings of state courts based on state law.
In their response, lawyers for the Pennsylvania voters argued that the legal fight was “a question purely of state law.” The determination by Pennsylvania’s top court, they argued, was an example of precisely the situation that the Supreme Court had recognized in Moore as “perfectly legitimate.”
Butler County, the lawyers for the voters added, is an outlier in refusing to count provisional ballots in cases where voters made disqualifying mistakes on their mail-in ballot. They say that since lawmakers extended the option to vote by mail to all eligible voters five years ago, most counties have counted such provisional ballots.
“That the R.N.C. does not like the result is no reason for this court to intervene on an emergency basis and disrupt the status quo on the eve of the election,” they wrote.
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