In its emergency stay application in this case, the RNC argues that the PA supreme court decision should be stayed, in part due to Purcell considerations.  Purcell thus far applies only to federal courts, as the RNC acknowledges, but it makes arguments as to why Purcell should apply also to state court decisions involving federal elections.

Leaving that issue aside, the question is also – as in so many Purcell cases – what the relevant status quo baseline should be for determining how Purcell applies. Here, the status quo in PA seems to have been that most counties already followed the understanding of state law that the PA supreme court decision endorsed. An amicus brief from a bipartisan group of county and other election administrators in PA makes that clear. In addition, it appears a number of lower court decisions in PA had also affirmed that interpretation of state law. The amicus brief also asserts that the few counties that did not accept the provisional ballots at issue can easily manage to comply with the state supreme court’s interpretation of the election code.

So the status quo seems to have been some variation in the counties, with most counties already following the practice the PA supreme court endorsed. Against that baseline, the PA decision is a clarification of the situation or an affirmation of the predominant practice in the state. Moreover, it is a clarification that brings uniformity and consistency to the issue on a statewide basis. That’s a good thing. Put another way, if the Court were to stay the decision based on Purcell, it would mean that we would revert to a situation in which different counties had different policies on whether to permit voters to cast these provisional ballots. I’m not going to say that would be a literal violation of Bush v. Gore, but the fact that the PA supreme court decision will bring statewide uniformity to the issue certainly has to be a plus.

More generally, I think the Purcell issue is a red herring here. The case involves state court interpretation of state election law. Issues about the meaning of state election law are inevitably going to arise, and Purcell can’t mean that state courts are under a flat bar prohibiting the interpretation of state election statutes close to an election — especially when different counties have different views. If a late-breaking state court decision would undermine the reliance interests of voters, that would be a different matter (that’s not involved here). But the mere interpretation of a state statute close to an election can’t sensibly be a basis for a stay under Purcell.

Yet here, that’s essentially what the RNC is arguing. The RNC asserts the relevant baseline is the election code itself, not what the general practice has been in PA for many years. Thus, the RNC’s position is basically that (1) we disagree with the state court’s interpretation of state law (2) therefore the PA court has changed election law too close to the election.

If this view were accepted, Purcell would lead to an even more expansive federal court role in second-guessing state interpretations of state election law than is the case under the independent state legislature doctrine from Moore v. Harper. After Moore, federal courts can invalidate such interpretations only if they “transgress the ordinary bounds of judicial review.” But to extend Purcell in the way the RNC suggest would mean that the Court would be in the business of second-guessing routine disputes over statutory interpretation if they arise late in the election cycle — and blocking state court decisions merely because the Court would interpret the statute differently than the state supreme court. That’s a far more expansive role than the one the Court carved out in Moore v. Harper.

Thus, the real substantive issue here (apart from various procedural issues) is whether a majority of the Court thinks there’s a serious independent state legislature doctrine issue here, along with the other requirements for a stay. I won’t address that issue here. But if there isn’t such an issue, Purcell shouldn’t be a basis for a stay (and if there is, Purcell is irrelevant). That’s why I consider the Purcell issue a red herring.

In sum, there’s an issue whether Purcell applies at all to state court decisions. Even if it does, the relevant status quo baseline here appears to be that most counties accepted the provisional ballots at issue, and the PA supreme court’s decision confirms and clarifies for all counties that that’s the correct practice under state law. Finally, Moore v. Harper defines the boundaries of federal court oversight of state judicial interpretation of state law in federal elections, and Purcell should not become a vehicle for dramatically expanding that federal role.

Update: To add a bit of detail, the decision has minimal burden on the minority of counties that don’t already count these provisional ballots. It only affects a decision they make at the very last stage of the canvassing process, as to whether to count a certain provisional or not. Given the small number of “naked ballot” voters statewide who come in to cast a provisional, these numbers are also quite small for the counties that would now need to include them in the count.