The RNC must have known the Genser case was a long shot as a means to get the Supreme Court to address this issue.  The case did not directly involve the 2024 election.  It involved a primary election that had long ago ended and in which only one county board was a party to the case.  The RNC was trying a bank shot to get the issue to the Court.

But if the RNC believes enough is at stake, I wouldn’t be surprised to see a new lawsuit that the RNC initiates that now would directly challenge the policy in the context of the 2024 election.  The fact that three of the Justices who voted to deny the stay went out of their way to make clear their votes were not a rejection of the ISL claim might encourage the RNC to continue to pursue the issue (that other Justices didn’t join that three-Justice statement might cut the other way, but if the stakes are perceived as significant, I don’t know if that silence would be enough for the RNC to decide to stand down).

On the timing of any such suit, PA does not start processing and counting provisional ballots until the Friday after election day.  An RNC lawsuit might seek to enjoin election officials from counting those ballots. 

I’ve been wondering about the procedural route through which such an RNC suit might be brought.  Perhaps the RNC would file in state court, seeking an injunction against county boards and the Secretary of State.  The RNC would argue these are not legal votes; the election officials would say the state supreme court has held already they are; and the RNC would argue that ruling violates the ISL doctrine.  The case would move rapidly through the state courts, since the state supreme court has resolved these issues already, and the RNC would then seek Supreme Court action.  Most cases raising the ISL issue, of which there are few, began in the state courts. 

Alternatively, the RNC might file an initial action in federal district court, arguing that state officials should be enjoined from counting these provisional ballots.  The RNC would present their claim as arising directly under the Electors Clause of the Constitution (that is, as an ISL claim).  Of course, once those provisional ballots are counted and mingled with all the other ballots, it would be too late for any litigation.

But the RNC would face a major standing problem in either context.  In Lance v. Coffman, the Supreme Court held that individual voters do not have standing to enforce the Elections Clause.  I assume the same would be true of the similarly written Electors Clause, which applies to presidential elections.  The Court seemed to suggest that the only injured party that could bring such suits is the state legislature, whose federal constitutional power the state courts (or state executive officials) have allegedly violated, or some actor the legislature has authorized to act on its behalf. 

But the state legislature in PA was not a party with the RNC in its effort to challenge the Genser decision – and the PA legislature is divided, with Democrats controlling one chamber.  So the PA legislature is not going to claim injury here and be part of this litigation.  In 2020, the Eighth Circuit held that presidential electors do have standing to raise ISL claims; whether this is consistent with Lance v. Coffman  is an open question.   

Derek Muller, anticipating these procedural issues in potential ISL cases, has an excellent post from 2023 working through a number of these issues.   We will see whether yesterday’s stay denial from the Supreme Court is the last word or not on the PA provisional ballot issue and the ISL challenge concerning those ballots.