Divided Pennsylvania Supreme Court, In Case Involving Mail-In and Provisional Ballots, Tees Up Potential Independent State Legislature Theory for U.S. Supreme Court

Genser v. Butler County Board of Elections involves a very particular issue under Pennsylvania law, but it raises a potentially larger one that could make it to the Supreme Court.

To simplify just a bit: voters send in their mail-in ballots, which are not allowed to be opened on election day. A machine essentially weighs the sealed envelopes and predicts which ballots do not contain a secrecy envelope (a so-called “naked ballot”), which the state supreme court earlier had said may not be counted under state law. A ballot predicted to lack the secrecy envelope triggers an email to the voter telling the voter that the voter can show up in person and cast a provisional ballot. The dispute in Genser concerns whether that provisional ballot must be counted under state law.

The four-Justice majority reads the PA statutes, in light of the state Constitution to require that the provisional ballots be counted so long as the mail-in ballots are not. The principal dissent for three Justices argues that this is an improper reading of the PA statutes.

A separate dissent argues that this interpretation is so outside the mainstream of interpretation that it “arrogates” the power of the PA legislature in violation of the independent state legislature theory accepted by the U.S. Supreme Court in Moore v. Harper. A separate concurrence takes issue with this interpretation and says that this is a good faith disagreement, not arrogation.

I am not sure how many ballots will fall into this category when voting happens in the upcoming election. But the PA Supreme Court’s opinion today will have the effect that they will be counted, unless there’s a contrary order from the U.S. Supreme Court. ELB readers may remember in 2020 that Justice Alito, facing a similar issue in a case involving ballots arriving within 3 days after election day ordered to be counted during the pandemic by the state supreme court, ordered those ballots sequestered. A sequestration order could happen again, and there could be a fight over the treatment of these ballots.

Let’s hope the margin of victory of the winning candidate in PA exceeds greatly the number of these ballots.

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