RNC Asks SCOTUS To Disqualify Certain Provisional Ballots in Pennsylvania 

The RNC is asking the U.S. Supreme Court to promptly pause a recent Pennsylvania Supreme Court decision concerning mail-in ballots. (Adobe Stock)

The Republican National Committee (RNC) is asking the U.S. Supreme Court to promptly pause a recent Pennsylvania Supreme Court decision that allows voters in the swing state to cast provisional ballots on Election Day if their mail-in ballots are disqualified due to a technical mistake. 

In their emergency request for a stay, the RNC and Pennsylvania Republican Party invoke the fringe independent state legislature (ISL) theory, which posits the U.S. Constitution’s Elections Clause grants state legislatures the sole authority to regulate federal elections without court intervention. 

Despite the U.S. Supreme Court’s previous rejection of the far-fetched constitutional argument in its 2022 Moore v. Harper decision, the RNC — citing Justice Brett Kavanaugh’s Moore concurrence — maintains the Pennsylvania Supreme Court’s recent ruling “transgress[ed] the ordinary bounds of judicial review.” 

The RNC’s petition notes that if the Court does not agree to enter a full stay, it should “at minimum” order that any provisional ballot cast by someone whose mail-in ballot was rejected be kept separate from other ballots — and ultimately be excluded from the vote total in the upcoming election. 

According to the GOP litigants, a legal principle that counsels against last-minute changes to federal elections also provides grounds for the Court to issue a stay. 

Last Wednesday, Pennsylvania’s highest court issued a 4-3 ruling that specifically ensures individuals who inadvertently submitted “naked” mail-in ballots without inner secrecy envelopes can vote provisionally in person at a polling place. Pro-voting advocates hailed the decision as a major victory that will protect Pennsylvanians from disenfranchisement.

The four-justice majority ultimately sided with voting rights groups, state officials and Democrats — all of whom argued that Pennsylvania law affords voters the right to cast a provisional ballot. The ruling rejected Republicans’ suggestion that requiring counties to allow for provisional voting after one’s mail-in ballot is rejected would amount to imposing so-called cure procedures, which allow voters to fix specific mail-in ballot mistakes. 

The majority opinion recognized that casting a provisional ballot is manifestly distinct from curing a defective mail-in ballot. In 2020, the Pennsylvania Supreme Court ruled that counties are not required to offer cure procedures and that naked mail-in ballots can’t be counted, but that decision did not address the separate issue of provisional voting. 

However, one of the dissenting justices said her colleagues’ Oct. 25 decision usurped the will of the state Legislature and exceeded the proper bounds of judicial review. Others in dissent echoed the RNC’s contention that state law prohibits the counting of a provisional ballot after a voter submitted a timely mail-in ballot — even if said mail-in ballot was disqualified. 

Last week, the RNC asked the Pennsylvania Supreme Court to halt its own decision, but the justices have not yet weighed in on the request. 

As it currently stands, the Pennsylvania Supreme Court’s ruling remains in effect and voters who make disqualifying mail-in ballot mistakes may continue to avail themselves of provisional voting as a backup option. 

Read the stay request here.

Learn more about the case here.