Supreme Court upholds Pennsylvania provisional voting ruling, major loss for GOP

The Supreme Court on Friday upheld a state court ruling that allowed some provisional ballots to be counted, a major setback for the state GOP and Republican National Committee just four days before the election.

Republican National Committee and state GOP filed an extraordinary appeal to the nation’s Supreme Court last week in an effort to temporarily halt a Pennsylvania Supreme Court ruling that ordered the state to count voters whose provisional ballots were improperly completed or were missing an inner “secrecy” envelope.

GOP attorneys urged the Supreme Court to permanently stay the state’s decision, writing in a final response filed Thursday evening that such a ruling would “prevent multiple forms” of “irreparable harm” to the state.

At the very least, a “segregation order” was called for, allowing ballots to be set aside and counted separately.

“The actual provisional ballots contain no identifying information, only the vote,” GOP lawyers wrote. “Once the ballots are separated from the outer envelopes, there is no way to check this retroactively which ballots were rejected illegally. In other words, once you have scrambled eggs, you can’t beat them anymore.”

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At issue is a lower court ruling in Butler County, Pennsylvania, where the local board of elections disqualified provisional ballots cast by two residents in the 2024 primary election. The duo joined the Pennsylvania Democratic Party in a lawsuit seeking to have their votes counted, which was ultimately granted by the state’s Commonwealth Court and upheld last week by a 4-3 majority of the Pennsylvania Supreme Court.

The Pennsylvania Supreme Court noted in its ruling that provisional votes can only be counted after a person’s eligibility to vote is confirmed and their absentee ballot is rejected.

“Counting voters’ provisional ballots when their absentee ballots are invalid due to failure to use a secrecy envelope is a statutory right,” state Supreme Court Justice Christine Donohue wrote in the majority opinion, adding that the rule in question “is intended to mitigate the potential for electoral rights of those entitled to vote.”

In their Wednesday response to the Supreme Court, opponents argued that the Republican plaintiffs left out important case history in the state — most notably, that in the six years since the Pennsylvania General Assembly updated its voting law in 2019 to allow mail-in voting, “most county boards of elections and most Pennsylvania courts that have heard the issue have counted provisional ballots submitted by voters who made a disqualifying error while trying to fill out their ballots for postal voting.

In fact, Butler County was one of the few counties that refused to count provisional ballots for votes that did not have secrecy envelopes until it became the subject of a lawsuit earlier this year by two plaintiffs whose votes were not counted.

“The applicant, arguing for a different interpretation of state law, he asked the Pennsylvania Supreme Court to take up this case and decide it before the 2024 general election.” – they wrote. “Last week, the Pennsylvania Supreme Court did just that. The fact that the RNC does not like the result is no reason for the Court to intervene urgently and disrupt the status quo on the eve of the election.”

It was disputed by Republican plaintiffs. In joining the state GOP in its lawsuit, GOP lawyers described the case as “of the utmost public importance, potentially affecting tens of thousands of votes in a state that many believe could be decisive in control of the U.S. Senate and even the House of Representatives.” r”

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The appeal was filed after Republicans filed nearly 100 lawsuits in recent weeks related to the election, which they say is aimed at preventing electoral fraud via postal and absentee ballots. (Democrats, in turn, sought to position themselves as the party supporting free and fair elections, using Republican lawsuits as a way to disenfranchise voters.)

Many of the lawsuits were filed in one of seven swing states considered crucial to either candidate winning the presidency.

In Pennsylvania, analysts say the GOP’s decision to join a lawsuit over provisional ballots in the final days of the campaign is likely a strategic move – a “placeholder” of sorts that allows them to cite a pre-existing legal challenge in a swing state that they may point to pressure on the courts to act after the elections.

It is “absolutely” easier to get a court to join the case after the election if the plaintiffs already have a legal challenge planned, says Andrew McCarthy, a former deputy U.S. attorney general for The Southern District of New York– he said in an interview with Fox News Digital.

In such cases, “you could at least look (the judges) in the eye and say, ‘Look. “I’m not asking you to change the election result, I’m asking you to respect the principles, that’s what we’re trying to do,” McCarthy said.

This is especially important in Pennsylvania – a battleground state for the largest number of electoral votes in 2024.

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It’s unclear how many Pennsylvanians there will be under the influence ruling on the provisional vote, and the Republican Party did not immediately respond to Fox News’ request for comment.

The estimates are unclear at best: A 2021 study by the MIT Election Data and Science Lab estimated that about 1.1% of mail-in ballots were not counted due to a lack of secrecy envelopes. In 2024, the number of absentee ballots in Pennsylvania has so far been lower than in 2020, when many people used the process due to COVID-19 precautions.

More recently, New York University Law Professor Richard Pildes he estimated yes could affect between 400 and 4,000 ballots in the state — although his back-of-the-napkin calculations focused only on bare ballots, not others sent with incomplete information.

A spate of recent lawsuits has raised concerns among some observers that the lawsuits will disenfranchise potential voters, prevent supporters of one candidate or another from voting or sow doubt about the election results.

But analysts told Fox News they doubt any of these lawsuits will have a long-lasting impact on the 2024 election, despite the additional scrutiny and media coverage.

“In the five presidential elections I’ve covered, I don’t think any pre-election challenge had a major impact,” George Washington University law professor Jonathan Turley told Fox News Digital.

“I think we’ll have a lot of litigation, but I’d be surprised if we had any whiplash,” Turley said.

In a joint statement Friday evening, the Harris campaign and the Democratic National Committee praised the Supreme Court’s decision.

“In Pennsylvania and across the country, Trump and his allies are trying to make it harder to count your votes, but our institutions are stronger than his heinous attacks,” they told Fox News Digital.

“Today’s decision confirms that for every eligible voter, the right to vote means the right to have their vote counted.”

Get the latest updates from the 2024 campaign trail, exclusive interviews and more on our Fox News Digital election hub.

Original article source: Supreme Court upholds Pennsylvania provisional voting ruling, major loss for GOP