Supreme Court rejects GOP request to stop PA from counting some provisional ballots

The Supreme Court on Friday declined to block Pennsylvania from counting some provisional ballots in Tuesday’s election, a decision potentially affecting thousands of votes in the battleground state.

The court rejected the Republican Party’s emergency request to intervene after the Pennsylvania Supreme Court said voters should be able to cast provisional ballots if they failed to encase an absentee ballot in the required secrecy sleeve.

State and national Republicans argued that would give voters an “unauthorized do-over” for “naked ballots” or for other mistakes on mail-in votes.

Pennsylvania is arguably the most important of the seven battleground states that will decide the Nov. 5 presidential election and polls show an exceedingly close race.

In a joint statement, spokespeople for the Democratic Party and Vice President Kamala Harris’ campaign said Republicans have been trying to make it harder for votes to count in Pennsylvania and across the country. But the Supreme Court’s decision, said Rosemary Boeglin and Michael Tyler, “confirms that, for every eligible voter, the right to vote means the right to have your vote counted.”

The state court's decision stemmed from a dispute about two votes cast in the Democratic primary. But Republicans said it would affect how votes are counted on Tuesday.

Justice Samuel Alito called the issue "a matter of considerable importance."

But in a brief written comment joined by Justice Clarence Thomas and Neil Gorsuch, Alito said pausing the state court's order ? as Republicans requested ? "would not prevent the consequences they fear" because the order applied only to the two primary votes.

Alito took no position on the validity of Republican's legal argument. None of the other justices offered a view or said how they voted.

Provisional ballots are set aside on Election Day and counted later if officials confirm the voter's eligibility.

State law allows provisional ballots if the voter "did not cast any other ballot, including an absentee ballot, in the election." It also says a provisional ballot “shall not be counted if the elector’s absentee ballot or mail-in ballot is timely received by a county board of elections.”

But if an absentee ballot is invalidated, the Pennsylvania Supreme Court reasoned, then it was not cast or timely received.

Republicans argued that decision effectively rewrote election law, something only lawmakers can do.

Democrats and voting rights groups countered that the court merely conducted a routine interpretation of a state law, which is well within the limits of judicial review. That puts it outside the bounds of a federal court's involvement, they argue.

They also said Republicans didn't have the legal right to seek the U.S. Supreme Court’s help because the dispute originated in the Democratic primary. And they argued Republicans were improperly requesting the court impose new rules on the cusp of the election for all of the state’s 67 county board of elections when only one was involved in the case.

Two voters sued the Butler County Board of Elections for rejecting their provisional ballots in the April primary after their mail-in votes were invalidated because they lacked security sleeves.

Most counties in the state allow voters to either cast provisional ballots in that circumstance or to fix their mail-in ballot, according to the ACLU of Pennsylvania.

But a county judge upheld the board’s decision not to count the votes, saying the law puts the responsibility on voters to properly submit their ballots.

Two state appellate courts disagreed, though their decisions were not unanimous.

The 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.

This article originally appeared on USA TODAY: Supreme Court won't block PA from counting some provisional ballots