On Monday, Republicans petitioned the Supreme Court to block a Pennsylvania judicial decision that mandates counting provisional ballots cast by voters who made errors on their mail-in ballots. This ruling could influence thousands of votes in the upcoming November 5 presidential election.
The Republican National Committee and the Republican Party of Pennsylvania requested the justices to stay the October 23 ruling from the Pennsylvania Supreme Court, which favored two Butler County voters seeking to have their provisional ballots counted after their mail-in ballots were rejected for lacking secrecy envelopes.
Pennsylvania stands among several closely contested states expected to impact the presidential race between former President Donald Trump and Democratic Vice President Kamala Harris. In their filing, Republicans argued that the state’s highest court undermined the legislature’s authority by changing election rules too close to Election Day. They stated, “This is an egregious usurpation of the General Assembly’s constitutional authority to set rules for federal elections.”
If the justices decide against pausing the ruling entirely, Republicans requested an order to segregate the disputed provisional ballots. This would provide the U.S. Supreme Court time to review the legal matter after the election.
Provisional ballots protect voters from exclusion if their eligibility remains uncertain on Election Day. Officials count these votes once they confirm a voter’s eligibility.
Unlike Butler County, the majority of Pennsylvania’s 67 counties have already counted provisional ballots from voters whose mail-in ballots were rejected. The case originated with two voters challenging a single county’s refusal to count their provisional ballots. Republicans intervened to defend the county’s decision, while Democrats supported the voters.
Republicans argue that, under Pennsylvania’s election law, if a voter’s absentee or mail-in ballot is properly received by 8 p.m. on Election Day but is defective, officials cannot count the provisional ballot. In contrast, Democrats maintain that if a mail-in ballot has a defect and cannot be counted, the voter has not yet voted, and thus the provisional ballot must be counted.
The divided Pennsylvania Supreme Court sided with the Democrats, stating that provisional ballots serve a “dual purpose” of preventing double voting while ensuring a voter’s right to have one vote counted. The state constitution protects against “disenfranchisement of voters as punishment for failure to conform to mail-in voting requirements,” the court ruled.
Republicans urged the U.S. Supreme Court to apply its 2023 ruling that allows justices to review state court decisions to ensure they do not overstep their authority in regulating federal elections. They also requested that the Pennsylvania Supreme Court pause its ruling while the U.S. Supreme Court reviews the case. However, Secretary of the Commonwealth Al Schmidt, a Republican, opposed this request, arguing that litigation concerning one county cannot block all counties from accepting provisional ballots. “This court should not countenance such chicanery,” Schmidt’s lawyers stated.
Pennsylvania has been a battleground for election-related litigation since the 2020 election, which Trump lost to Democrat Joe Biden. In 2020, Pennsylvania Republicans unsuccessfully appealed to the Supreme Court regarding a ruling that ordered officials to count mail-in ballots postmarked by Election Day and received up to three days later.
