The Supreme Court rejected Republicans’ request to block Pennsylvania officials from counting provisional ballots by voters whose mail ballots are rejected for technical flaws.
The high court order follows Wednesday’s order permitting a GOP-backed purge of Virginia voter rolls ahead of Election Day. The Virginia order was entered over dissent from the court’s three Democratic appointees.
In the Pennsylvania case, the state Supreme Court split 4-3 in upholding a lower court ruling that required the counting of provisional ballots submitted by voters who are told their mail ballots can’t be counted. “Provisional ballots exist as a failsafe to preserve access to the right to vote,” the state court said, noting that such ballots can only be counted if no other ballots from a voter are counted.
“The General Assembly wrote the Election Code with the purpose of enabling citizens to exercise their right to vote, not for the purpose of creating obstacles to voting,” the state court majority said.
A key swing state, Pennsylvania was decided by about 80,000 votes in Joe Biden’s 2020 victory over Donald Trump and by about 44,000 votes in Trump’s 2016 win over Hillary Clinton. The 2024 race between Trump and Kamala Harris is also expected to be close.
Friday’s Supreme Court action comes amid Trump-backed efforts to stoke unfounded voter fraud claims in the battleground state.
Seeking to halt the Pennsylvania Supreme Court ruling, Republicans told the justices that the case “is of paramount public importance, potentially affecting tens of thousands of votes in a State which many anticipate could be decisive in control of the U.S. Senate or even the 2024 Presidential Election.” The GOP alternatively asked the court at least to order such provisional ballots be kept separate from the official count, so that the justices can fully review the Pennsylvania ruling after Election Day.
Justice Samuel Alito issued an accompanying statement to the order, joined by Justices Clarence Thomas and Neil Gorsuch, saying that the issue is one of “considerable importance” but that pausing the state court ruling wouldn’t impose any binding obligation on state officials responsible for this year’s election.
Alito noted that the dispute arose out of just two voters stemming from the already completed primary election. “And because the only state election officials who are parties in this case are the members of the board of elections in one small county, we cannot order other election boards to sequester affected ballots,” he wrote.
While the case is important in its own right, it also implicates broader principles about court intervention close to elections and the power balance between state legislatures, state courts and the U.S. Supreme Court in election cases.
An opposition brief from the two voters whose provisional ballots initiated the case said the RNC “seeks what can only be described as an election-eve change in state law from a federal court — a change that, at least in the RNC’s own telling, would be highly disruptive, altering the treatment of ‘tens of thousands of provisional votes’ and could even involve ‘flipping’ the result of ‘one or more elections in Pennsylvania.’”
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