Are we about to see the Supreme Court weigh back into the application of the independent state legislature theory?

Back on Wednesday, I wrote about a divided ruling of the Pennsylvania Supreme Court that required the counting of provisional ballots submitted by voters after the voters were notified that the mail-in ballots they submitted were defective for missing a secrecy sleeve. Republicans have now signalled they will go to the Supreme Court to get that ruling overturned on independent state legislature theory grounds, or at least get an order for now for those ballots to be segregated while the matter plays out.

I did not expect that this case would lead to an emergency filing in the Supreme Court, because it involved the treatment of such ballots in the 2024 primary elections now long since past. The RNC’s stay application to the PA Supreme Court, does not even mention that this took place in the primary. Instead the claim is one of irreparable injury for how the matter will be handled in the upcoming general election (“absent a stay, the Republican Committees will suffer ‘irreparable injury’ because they will lose the right to seek review in the U.S. Supreme Court and, once the 2024 General Election has come and gone, cannot receive a remedy for election results tainted by ballots illegally counted in violation of the General Assembly’s plain directives and the Elections and Electors Clauses.”). Not sure that will work. If not, there might have to be some kind of new lawsuit raising the issue in time for these ballots.

How many ballots may be at issue? This new research suggests it could be thousands of ballots, so this could matter if Pennsylvania is crucial to the outcome of the election.