The Republican National Committee and other major campaign organs of the party on Monday seized on a recent Supreme Court order in an attempt to get undated and incorrectly dated Pennsylvania absentee ballots invalidated for the upcoming elections.
The Supreme Court last week rendered moot a March decision from the United States Court of Appeals for the Third Circuit that undated ballots should be counted, as the date or lack thereof has no bearing on whether the individual is qualified to vote. The appeals court found that requiring the date is a technicality that violates the “materiality provision” of the Civil Rights Act.
That decision came from a dispute over the ballots in a 2021 race for a spot on the Lehigh County Court of Common Pleas. The Republican candidate, who lost by a handful of votes, asked the Supreme Court to nullify the appellate court’s decision.
Last week, the Court complied. Justice Samuel Alito, joined by Justices Neil Gorsuch and Clarence Thomas, had written previously that the Third Circuit’s decision was “very likely wrong” and invited an involved party to file a petition for certiorari so the justices could correct it.
The RNC, joined by the National Republican Congressional Committee and the Republican Party of Pennsylvania, heeded the conservative justice’s advice and went to the Pennsylvania Supreme Court. The Republicans are asking that the court uphold the date requirement for the upcoming midterms, invalidate the acting Secretary of State’s guidance that undated ballots should be counted and order that all county boards of election segregate undated or incorrectly dated ballots from the rest.
Acting Pennsylvania Secretary of State Leigh Chapman had issued a statement after the Supreme Court mooted the lower court’s ruling last week.
“Today’s order from the U.S. Supreme Court vacating the Third Circuit’s decision on mootness grounds was not based on the merits of the issue and does not affect the prior decision of Commonwealth Court in any way,” she said. “It provides no justification for counties to exclude ballots based on a minor omission, and we expect that counties will continue to comply with their obligation to count all legal votes.”
While the Republicans argue that counting undated ballots will “erode public trust” in Pennsylvania’s elections at a “vital time” in the country’s history — while conveniently omitting their party’s own role in creating an environment of doubt and conspiracy theories around elections — the political calculus here is clear. Pennsylvania Democrats voted by mail significantly more than Republicans did in 2020. The stakes are all the higher given that Pennsylvania is hosting marquee elections for a critical Senate seat and a governor’s mansion, the occupant of which gets to select the secretary of state.
The GOP organizations are candid in their intent to remove ballots they think will work against Republican candidates.
“Absent this relief, a county board of elections that counts undated or incorrectly dated ballots cannot remove non-compliant ballots from its certified election results if this Court upholds the General Assembly’s date requirement,” the Republicans write. “The resulting dilution of Voter Petitioners’ votes — and harm to the Republican Committees’ voters and candidates — cannot be compensated through an award of damages.”
In their filing, the Republicans also cite the independent state legislature theory, an increasingly popular idea on the right that state legislatures — and only state legislatures, to the exclusion of state courts and even of state constitutions and ballot initiatives, in some interpretations — control federal elections.
“State courts wield no authority to regulate federal elections and may not deploy broad and amorphous state constitutional provisions to rewrite state laws governing those elections,” they write. They also cite Alito’s dissent from a denial of application of stay in Moore v. Harper, a case the Court will hear this term that could upend the functioning of American democracy.
The Republicans argue that there is not enough time for “ordinary processes of law” to play out over the dating issue, so the Pennsylvania Supreme Court should just issue the order now. This immediately pre-election chaos was inevitable ever since the Supreme Court handed down the order to nullify the appellate court decision just a few weeks before the election — a decision seemingly at odds with conservative justices’ insistence on upholding the Purcell principle and resisting interfering with election laws close to when voting begins for other cases in which they’ve struck down voter protections.
Read the Republicans’ filing here: