RNC Asks SCOTUS To Take Up Appeal To Restrict Provisional Voting in Pennsylvania

The Republican National Committee (RNC) asked the U.S. Supreme Court to hear its appeal of an October 2024 Pennsylvania Supreme Court decision allowing voters to cast provisional ballots on Election Day if their timely received mail-in ballots are disqualified due to a technical mistake.
The RNC and Pennsylvania Republican Party’s Jan. 21 cert petition invokes the discredited independent state legislature (ISL) theory, which posits the U.S. Constitution’s Elections and Electors Clauses grant state legislatures exclusive authority to regulate federal elections without court intervention.
Although the U.S. Supreme Court previously rejected the far-fetched constitutional argument in its 2022 Moore v. Harper decision — and just recently declined to take up an ISL-based appeal out of Montana — the RNC maintains that the Pennsylvania Supreme Court “transgressed” the ordinary bounds of judicial review and thereby “usurped” the authority of the Pennsylvania Legislature.
In the particular case at hand, the Republican petitioners assert that Pennsylvania’s highest court unconstitutionally exceeded its authority when it affirmed that voters have a lawful right to vote provisionally at the polls as a “failsafe” if their mail-in ballots are rejected for missing an inner secrecy envelope.
The state Supreme Court’s underlying 4-3 ruling stemmed from a dispute over two voters’ so-called “naked” ballots that were discarded during Butler County’s 2024 primary elections for not being properly enclosed in a secrecy envelope. A majority of the justices agreed with arguments from pro-voting advocates and top Pennsylvania election officials that voters whose “naked” ballots were invalidated should still have the opportunity to cast a provisional ballot on Election Day so as to protect against disenfranchisement.
Just days before the November 2024 general election, the U.S. Supreme Court unanimously rejected Republicans’ request for a stay of the Pennsylvania Supreme Court’s ruling — thereby ensuring that voters in the swing state could still rely on provisional voting as needed.
Republicans’ recent cert petition asking the justices to hear the case in full contends that the Court ought to adopt an ISL-rooted “test” to determine if a state court went beyond the ordinary bounds of judicial review — something the justices declined to do in Moore.
In urging the justices to take up the case, the GOP litigants wrote that “the case presents an ideal vehicle for the Court to fulfill Moore’s promised enforcement of the Elections and Electors Clauses.”
“[T]he 2024 federal elections in Pennsylvania were conducted under rules set by a state court rather than the state legislature, in direct defiance of the Federal Constitution. And without this Court’s intervention, future elections will be too,” the petition reads.
According to the RNC, the Pennsylvania Supreme Court unconstitutionally encroached on the power of the Legislature, which has prescribed laws that preclude the counting of a provisional ballot if the voter’s mail-in ballot was already timely received.
But the Pennsylvania Supreme Court’s majority rebuffed this myopic legal interpretation, concluding that in situations where a timely received mail-in ballot is specifically tossed out due to a disqualifying error, voters — who would otherwise be disenfranchised — have the right to cast a provisional ballot as guaranteed by Pennsylvania law.
In the coming weeks, Butler County voters, Democrats and Pennsylvania election officials involved in the litigation will likely file responses to the RNC’s petition, after which the Court will consider whether to grant the cert petition. At least four out of nine justices must agree to hear a case.
So far this term, the Court has denied four requests for review in voting and elections-related cases. It has, however, agreed to hear a consequential redistricting case out of Louisiana, which has not yet been set for oral argument.