The Republican National Committee and the Republican Party of Pennsylvania have asked the state’s highest court to delay a ruling that could affect thousands of voters next month while it asks the U.S. Supreme Court to hear an appeal.
The Pennsylvania Supreme Court ruled Wednesday that the election code requires county election officials to allow voters to cast a provisional ballot if their mail-in ballot is rejected and have the provisional ballot counted as long as there are no additional disqualifying problems.
In a filing Friday morning, the RNC and Pennsylvania Republican Party argued that the ruling goes against the court’s own admonition against changing voting rules while an election is in progress.
The state Supreme Court on Oct. 5 denied requests in two other cases to resolve questions about the commonwealth’s vote-by-mail law in the final few weeks before the Nov. 5 presidential election. It said the risk of confusing voters with a change in voting rules so close to the election was too great.
“This Court should heed its statement from earlier this month and refrain from “substantial[ly] alter[ing]” the rules and procedures governing county boards’ counting of ballots in the current election,” the RNC and state Republican party’s filing Friday said.
The ruling Wednesday upheld a decision by a Commonwealth Court panel in favor of Butler County voters whose mail-in ballots were rejected because they were returned without being sealed inside a second “secrecy envelope,” one of several reasons mail ballots may be disqualified.
A Butler County judge’s decision found that allowing the voters to cast provisional ballots to be counted amounted to “ballot curing” or allowing them to fix the errors on their mail-in ballots.
Commonwealth Court Judge Matthew Wolf said in September that the county election officials lacked a legal basis to refuse to count the provisional ballots.
The Republican groups argued in their petition that the state Supreme Court’s order affirming the lower court decision fundamentally alters the nature of the election by giving voters who failed to follow the rules “an unauthorized do-over.”
Further, they argue, the state Supreme Court’s decision violates the U.S. Constitution’s provision that state legislatures have the power to set the “times, places and manner” of elections. The U.S. Supreme Court last year rejected an application of the so-called independent state legislature theory in a challenge by North Carolina Republicans of congressional redistricting decisions by that state’s high court.
If the U.S. Supreme Court takes the Butler County case, the Republican groups have a strong likelihood of winning, they argue. The Pennsylvania Legislature explicitly prohibited voters to cast a provisional ballot if their mail-in ballot is “timely received” but the law says nothing about whether the voter’s mail ballot is valid.
The Republican committees also say that the state Supreme Court should stay its decision because they would suffer an “irreparable injury” if the ruling is in effect on election day. Delaying the ruling would also promote the public interest and prevent harm to others because it would protect the integrity of the ongoing election, the filing says.
The cases the state Supreme Court declined to decide before the election deal with whether mail-in ballots should be disqualified because a voter wrote the wrong date or no date on the outer envelope and whether county election officials may notify voters who make a mistake and give them a chance to correct it.
A decision is still pending in yet another mail-in ballot lawsuit. The Supreme Court agreed to decide whether Washington County election officials must accurately report whether mail-in ballots have been rejected.
The Washington County board of elections had adopted a policy days before last April’s primary of marking ballots as “received” in the state ballot tracking system when they had actually been segregated due to a disqualifying error.
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