Missing secrecy sleeves: GOP ask Supreme Court to block do-overs for naked ballots in Pennsylvania

WASHINGTON – Republicans have asked the Supreme Court to block Pennsylvania voters from casting a back-up ballot if they failed to encase an absentee ballot in the required “secrecy sleeve,” an issue that could throw the justices into the middle of one of the most hotly contested presidential battles as well as a competitive Senate race.

The GOP filed the emergency request after Pennsylvania’s highest court said provisional ballots cast on election day can count if a voter's “naked” absentee ballot was invalidated.

Republicans argue that’s an incorrect interpretation of the state’s election law and would give voters an “unauthorized do-over" for missing secrecy sleeves or for not signing and dating the outer envelope.

"In recent Pennsylvania elections, tens of thousands of ballots have been rejected for violating mandatory election rules ? and voters get no mulligan in those elections," lawyers for the RNC wrote.

But a divided Pennsylvania Supreme Court said it makes no sense that lawmakers wanted to “wholly disenfranchise a voter on account of a mistake with their Return Packet for no discernable purpose.”

“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,” Pennsylvania Supreme Court Justice Christine Donohue wrote for the 4-3 majority.

Pennsylvania, the largest of the seven battleground states that will decide the Nov. 5 presidential contest, is arguably the most important.

That means any challenge to how ballots are counted receives extra attention.

The GOP told the Supreme Court that a study from MIT Election Data and Science Lab found about 1% of mail-in ballots from the 2020 election were not counted because they lacked the secrecy envelope.

But based on a different analysis of the 2022 midterms, New York University law professor Richard Pildes has estimated that even if everyone who incorrectly mailed in a naked ballot this fall wanted an in-person do-over, the maximum number of ballots expected to favor Democrats would be less than 4,000.

Former President Donald Trump won the state by about 44,000 votes in 2016.

President Joe Biden carried Pennsylvania by more than 80,000 votes in 2020.

In that election, the Supreme Court declined to get involved in a dispute over whether absentee ballots received up to three days after Election Day in Pennsylvania should be counted, an issue that did not affect the outcome.

The current case before the court stems not from the general election, but from the Democratic primary.

Two voters who were notified in advance of the primary that their absentee ballots had been improperly submitted tried casting provisional ballots on election day. When they were notified later that their provisional ballots were not counted, they sued.

The trial court upheld the Butler County Board of Elections’ decision not to count the votes, saying the law puts the responsibility on voters to properly submit their ballots.

But the two state appellate courts to review that decision disagreed, though their decisions were not unanimous.

The Pennsylvania Supreme Court said a provisional ballot can be counted if the absentee ballot was not.

Republicans want the U.S. Supreme Court to freeze that ruling, or at least require that provisional ballots from voters whose mail-in ballots were invalidated be segregated to allow for a post-election challenge if necessary.

This article originally appeared on USA TODAY: GOP asks Supreme Court to block do-overs for 'naked ballots' in PA