U.S. Supreme Court rejects GOP request to review Pa. provisional ballot ruling
A voter deposits a mail-in ballot at the drop box outside the Chester County Government Center on Tuesday, Nov. 5, 2024. (Capital-Star/Peter Hall)
A GOP challenge to the Pennsylvania Supreme Court's ruling on provisional ballots is dead, after the U.S. Supreme Court declined to hear the case Friday.
The high court's rejection means county boards of elections must count provisional ballots cast by voters who find out their mail-in ballots have been rejected under the state Supreme Court's decision in October.
The case at issue, Faith Genser et al vs. the Butler County Board of Elections, stemmed from a lawsuit filed after the 2024 primary election by two Butler County voters. They claimed they were disenfranchised when the board refused to count provisional ballots the voters cast on Election Day, after learning their mail ballots were disqualified for missing dates.
The board of elections reasoned 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.
In its 4-3 decision, the state Supreme Court found the Elections 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.
The U.S. Supreme Court did not explain its decision not to hear the appeal. Attorneys for the RNC and Republican Party of Pennsylvania did not respond to an email requesting comment.
'Republicans don't think every rightful vote should count. We disagree, and now, the Supreme Court has sided with us. Pennsylvanians deserve to have their say in every election – full stop,' Democratic National Committee Chairperson Ken Martin said in a statement.
The case is one of many involving 'paperwork errors' on vote-by-mail-ballots, since absentee voting without an excuse became an option in 2019 with the passage of Act 77.
'Every election, thousands of Pennsylvania mail ballots are voided due to common technical mistakes made by voters,' Rich Ting, senior staff attorney at the ACLU of Pennsylvania, said. 'Thanks to Faith Genser and Frank Matis fighting for their right to vote, all Pennsylvania voters who make those mistakes are guaranteed the right to vote by provisional ballot as a failsafe.'
The ACLU of Pennsylvania and the Public Interest Law Center with pro-bono counsel from Dechert LLP represented Genser and Matis in their lawsuit.
'The Supreme Court's determination not to hear this case means that Pennsylvanians who make a technical mistake with their mail-in ballots will have a way to fix the mistake instead of losing the opportunity to vote,' Ben Geffen, senior attorney at the Public Interest Law Center, said.
In its petition to the U.S. Supreme Court, the GOP argued the state Supreme Court usurped the Pennsylvania Legislature's authority 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.
In opposition, the DNC and Pennsylvania Democratic Party asserted that the U.S. Supreme Court lacks jurisdiction, because the case falls outside the limited circumstances in which it can review the judgment of a state's highest court. Such appeals are allowed only when a federal law is in question, a state law is claimed to conflict with federal law or 'where any title, right, privilege, or immunity is specially set up or claimed under the Constitution.'
The decision last week is the second time the U.S. Supreme Court has passed on reviewing the Pennsylvania Supreme Court's decision. In November it refused to place a stay on enforcement of the ruling days before the presidential election.
The Pennsylvania General Assembly has taken steps to pass amendments to clarify the vote-by-mail law in recent weeks.
House Bill 1396, sponsored by Speaker Joanna McClinton (D-Philadelphia) would give election workers up to a week before Election Day to prepare to count mail-in ballots, a process that has been a bottleneck for election results in parts of the state, and has provided fodder for election deniers. The measure would remedy other ambiguities in Act 77, such as making clear that county election officials must notify voters if their mail ballots are rejected. It passed the House with a 102-101 vote along party lines May 13.
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