Supreme Court Refuses to Block Swing State Mail-In Ballot Decision Days Before Election

The Supreme Court declined Friday to block a lower court ruling finding Pennsylvania voters whose mail-in ballots are rejected over errors can cast a provisional vote.

Justice Samuel Alito wrote the question is of “considerable importance” but noted that even siding with the Republican National Committee (RNC) at this time “could not prevent the consequences they fear” in a statement joined by Justices Clarence Thomas and Neil Gorsuch.

The Pennsylvania Supreme Court ruled 4-3 on Oct. 23 to allow voters a second chance to cast a provisional ballot in-person when their mail ballots are rejected, a decision Republicans argued “dramatically” changed the rules and “departed from the plain terms of the Election Code.”

Republicans asked the Supreme Court to block the ruling on Monday, writing in their petition that this is “the second consecutive presidential election in which the Pennsylvania Supreme Court has changed important election rules at the last minute.”

“Even if the Pennsylvania Supreme Court’s decision does not change the outcome of any election, the question of whether the provisional ballots can be added to the vote total would remain a concrete dispute this Court can review,” the RNC argued in its emergency application. “Reviewing that court’s authority to do so — even after Election Day (when the pressure of an imminent election would be absent) — would provide invaluable guidance for future elections.’”

Alito wrote that the lower court’s decision “concerns just two votes in the long-completed Pennsylvania primary.”

“Staying that judgment would not impose any binding obligation on any of the Pennsylvania officials who are responsible for the conduct of this year’s election,” he wrote. “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.”

The Pennsylvania Democratic Party previously told the justices the RNC offered “no sound reason” to block the lower court decision.

“Put simply, the Pennsylvania Supreme Court’s holding that a voter whose mail ballot is not counted may exercise her statutory right to vote provisionally (rather than being disenfranchised altogether) was a straightforward and correct interpretation of Pennsylvania law,” the party wrote in its Wednesday filing.

“In an effort to cast the decision below as essentially lawless, the RNC quotes selectively from the Pennsylvania Election Code, abandoning any attempt to present accurately or fairly the actual interpretive problem the Pennsylvania Supreme Court faced,” attorneys for Butler County voters Faith Genser and Frank Matis argued in a court filing Wednesday.

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