With every MAGA effort to sabotage the election, the eyes of the nation are on the Supreme Court. Late Friday (November 1), the Court turned back a Republican effort to prevent certain votes from being counted in Pennsylvania. Unfortunately, it may only be a temporary victory for supporters of fair elections: Three of the MAGA justices wrote a road map for Trump supporters to bring the exact same issue back to the Court and prevent a fair count in Pennsylvania.
What’s the issue in Pennsylvania?
The issue involves whether voters whose mail-in ballots have been invalidated can cast a provisional ballot cast on Election Day and have it counted. Republicans say no: those voters have lost their chance to vote and should not have a voice on Election Day.
Under Pennsylvania law, voters casting their ballot by mail have to follow certain rules. One of them is to place their ballot into a “secrecy envelope” before placing it into the mailing envelope. Those who fail to do that get a notification from the state saying that their ballot was not valid but that they can cast a provisional ballot on Election Day.
The conflict in this case is on whether those provisional ballots can be counted.
During last April’s Democratic primary, Butler County residents Faith Genser and Frank Matis cast provisional ballots that officials did not count. So Genser and Matis sued the Butler County Board of Elections. After several months and appeals, with state and national political parties joining the case on opposite sides, the issue was finally resolved by the Pennsylvania Supreme Court in late October.
The question was how to interpret the Pennsylvania election statutes. Those statutes state that “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.” Republicans argued this meant Matis and Genser’s provisional ballots could not be counted.
But the Pennsylvania Supreme Court disagreed: It pointed out that since the invalidated mail-in ballots were void, they had no legal effect. It is as if they had never been mailed in. So that meant Genser and Matis had the right to have their provisional ballots counted.
How did Republicans respond?
Republicans immediately appealed to the U.S. Supreme Court. They urged the justices to stay the Pennsylvania court ruling in time for the fall election just a few days later. They want to prevent Pennsylvania citizens whose mail-in ballots were invalidated from having a chance to vote via a provisional ballot that will actually be counted. They claim that the Pennsylvania court’s decision usurped the role of the legislature in establishing processes for federal elections. (More on that below.)
What did the Supreme Court do?
On November 1, without an opinion explaining their reasoning, the Supreme Court denied the Republicans’ appeal for a stay of the state court ruling.
Is that the end of this issue?
Unfortunately, probably not.
Three of the MAGA justices (Samuel Alito, joined by Clarence Thomas and Neil Gorsuch) attached a statement to the Supreme Court’s order. They arguably gave Republicans a road map on how to get what they want.
Alito went out of his way to call the state court’s legal reasoning “controversial.” Although he added that he wasn’t taking a position on it “at this time,” the signal is clear.
Alito wrote that even if the U.S. Supreme Court stayed the state court decision, it would not give Republicans what they seek during the general election. That’s because:
- The only defendants in this particular case are election officials in Butler county. Therefore, the justices can’t use this case as a vehicle to direct election boards anywhere else in the state to do (or not do) anything.
- The lower court order involves two voters in an election that was completed months ago.
This would appear to be a “how-to” manual from Alito, Thomas, and Gorsuch to MAGA Republicans on how to get what they want:
- Sue statewide officials, not just officials in one county.
- Sue in the context of the general election.
Although the other three MAGA justices didn’t sign on to this statement, we can’t assume they won’t be aligned with Alito, Gorsuch, and Thomas when Pennsylvania Republicans and the Trump campaign file the case they have been invited to file.
How does this relate to Moore v. Harper, the state-legislature power grab case from 2023?
In the June 2023 case of Moore v. Harper, a 6-3 majority rejected Republicans’ claim that state courts had no say in limiting how state legislatures set up federal elections. This was the so-called “independent state legislature theory.” Under this idea, the U.S. Constitution gives state legislatures the final word over any other state entity on how to run federal elections in that state. That would have shut state courts out of the process, and allowed state legislatures to enact processes that blatantly violate their own state constitutions.
Fortunately, six justices rejected the idea. (The three dissenters were Justices Alito, Thomas, and Gorsuch.) But the majority opinion written by Chief Justice John Roberts left room for mischief by far-right federal judges looking for reasons to strike down state court interpretations of state constitutions and state statutes that they don’t like:
[S]tate courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.
As we said on the day Moore v. Harper was decided:
[It] is not hard to imagine far-right judges inaccurately claiming that a state court has “arrogated” the legislature’s role. How federal judges should make that call is a question left for a future case.
So what happens next?
We should not be surprised if the Trump campaign and Republicans file another lawsuit to block the counting of provisional ballots of Pennsylvanians who are trying to make up for the fact that they made mistakes in returning their mail-in ballots that caused them to be invalidated.
If that happens, it seems likely that at least three of the MAGA justices will support them. We will be watching to see what the other justices do.
In other words, the November 1 action by the Supreme Court may have been a comma, not a period.