Supreme Court upholds Pennsylvania provisional ballot ruling, in a major loss for GOP

The Supreme Court on Friday upheld a state court ruling that allowed for the counting of certain provisional ballots, in a major setback for the state GOP and Republican National Committee just four days before the election.

The Republican National Committee and the state GOP filed an emergency appeal to the nation’s top court last week seeking to temporarily halt a Pennsylvania Supreme Court ruling that ordered the state to count voters whose provisional ballots had been incorrectly filled out or were missing an inner “secrecy” envelope. 

Attorneys for the Republican Party urged the Supreme Court to grant a full stay of the state’s decision, writing in a final reply brief submitted Thursday evening that such an order would “prevent multiple forms” of “irreparable harm” to the state. 

At a minimum, the court was urged to grant a “segregation order” to allow the ballots to be set aside and counted separately. 

“The actual provisional ballots contain no identifying information, only a vote,” the GOP’s lawyers wrote. “Once ballots are separated from their outer envelopes, there is no way to retroactively figure out which ballots were illegally cast. In other words, once the egg is scrambled, it cannot be unscrambled.”

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At issue is a lower court ruling in Butler County, Pa., where a local election board had disqualified provisional ballots cast by two residents in the 2024 primary election. That duo joined the Pennsylvania Democratic Party in a lawsuit that sought to have their votes counted, which ultimately was the outcome granted by a state Commonwealth Court and upheld last week by a 4-3 Pennsylvania Supreme Court majority.

The Pennsylvania Supreme Court noted in its ruling that provisional votes can be counted only after a person’s eligibility to vote and the rejection of their mail-in ballot are confirmed. 

“Counting Electors’ provisional ballots, when their mail ballots are void for failing to use a Secrecy Envelope, is a statutory right,” state Supreme Court Justice Christine Donohue wrote in the majority opinion, adding that the rule in question is “intended to alleviate potential disenfranchisement for eligible voters.”

In their response to the Supreme Court Wednesday, opponents argued that Republican plaintiffs had left out important case history in the state — primarily, that in the six years since Pennsylvania’s General Assembly had updated its voting law in 2019 to allow mail-in ballots, “most county boards of elections, and most Pennsylvania courts to consider the issue, have counted provisional ballots submitted by voters who had made a disqualifying mistake in attempting to complete their mail ballots.” 

In fact, Butler County was among the few counties that refused to count provisional ballots for votes that were lacking secrecy envelopes, until it became the subject of a lawsuit earlier this year by the two plaintiffs whose votes were not counted.

“Applicants, advancing a divergent interpretation of state law, asked the Pennsylvania Supreme Court to take the case and decide it before the 2024 General Election,” they wrote. “Last week the Pennsylvania Supreme Court did just that. That the RNC does not like the result is no reason for this Court to intervene on an emergency basis and disrupt the status quo on the eve of the election.” 

That was contested by Republican plaintiffs. In joining the state GOP in the lawsuit, lawyers for the Republican Party described the case as one 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.”

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The appeal comes as Republicans have filed nearly 100 election-related court challenges in recent weeks, legal challenges they say are aimed at preventing voter fraud through absentee and mail-in ballots. (Democrats, in return, have sought to position themselves as the party that supports free and fair elections, seizing on the Republican lawsuits as a means of disenfranchising voters.)

Many of the lawsuits have been filed in one of seven swing states considered pivotal for either candidate to win the presidency.

In Pennsylvania, the Republican Party’s decision to join a lawsuit over provisional ballots in the final days of the campaign is likely a strategic move, analysts said—a “placeholder” of sorts that allows them to cite a preexisting legal challenge in a swing state that they can point to in pushing for courts to act after an election.

It’s “absolutely” easier to get a court to involve itself in a case after an election if plaintiffs already have a legal challenge on the books, Andrew McCarthy, a former U.S. assistant attorney general for the Southern District of New York, told Fox News Digital in an interview.

In those cases, “you could at least look [judges] in the eye and say, ‘look. I’m not asking you to change the result of the election, I’m asking you to address the rules, which is what we tried to do before,’” McCarthy said.

This is especially important in Pennsylvania, the battleground state with the most electoral votes at stake in 2024. 

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It is unclear how many residents in Pennsylvania will be impacted by the provisional ballot ruling, and the Republican Party did not immediately respond to Fox News’ request for comment.

Estimates have been murky at best: A 2021 study conducted by the MIT Election Data and Science Lab estimated roughly 1.1% of mail-in ballots were not counted due to missing secrecy envelopes. Mail-in ballots in Pennsylvania have been lower so far in 2024 than 2020, when many relied on that process due to COVID-19 precautions.

More recently, New York University law professor Richard Pildes estimated that the case could affect between 400 and 4,000 ballots in the state – though his “back-of-the-napkin” math focused solely on naked ballots, and not others sent with incomplete information.

In a close race, the wave of recent court cases has led some observers to fear the lawsuits will either disenfranchise would-be voters, keep one or the other candidate’s supporters from participating in the election or sow doubt about the election results.

But analysts told Fox News they doubt that any of these lawsuits will have a protracted impact on the 2024 election, despite the additional scrutiny and media coverage. 

“In the five presidential elections I’ve covered, I don’t think any pre-election challenge had a huge impact,” George Washington University law professor Jonathan Turley told Fox News Digital in a recent interview.

“I think we’re going to have a lot of litigation, but I would be surprised if we have any jugular hits,” Turley said.

Get the latest updates from the 2024 campaign trail, exclusive interviews and more at our Fox News Digital election hub.