Pennsylvania ‘Naked’ Ballots Fight Reaches US Supreme Court

The Republican Party has asked the US Supreme Court to stop Pennsylvanians from getting a second chance to vote in the Nov. 5 election if their mail-in ballots are rejected as incomplete.

The Pennsylvania Supreme Court ruled last week that the state must count provisional ballots cast by voters whose mail-in ballots are disqualified for failing to include an inner envelope around the ballot for secrecy — commonly referred to as “naked” ballots.

The Republican National Committee and state Republican Party organization filed an application on Monday asking the justices to block the state court’s order from taking effect for the 2024 election. Alternatively, if the justices aren’t inclined to decide if the ballots should count before Election Day, the Republicans asked the court to order the state to set aside the provisional ballots at issue while the fight plays out.

The justices asked for responses to the Republicans’ application by Wednesday.

Whether this “crucial election will be conducted under the rules set by the General Assembly or under the whims of the Pennsylvania Supreme Court is an important constitutional question meriting this Court’s immediate attention,” lawyers for the Republican Party wrote.

The Pennsylvania fight is the second case to reach the justices this week. Lawyers for Virginia have asked the court to let the state enforce a voter roll purge ahead of Election Day after lower courts blocked it.

Tight Race

The cases put the high court in the spotlight in the final days of the US presidential contest. Pennsylvania is one of the battleground states where polls show a tight race for the White House between former President Donald Trump and Vice President Kamala Harris.

Thousands of votes could be at stake in the naked ballots case. The Associated Press reported that in the 2022 midterm election, 8,250 mail-in ballots were rejected for missing the secrecy envelope.

Pennsylvania law says that provisional ballots can’t be counted if a voter’s absentee or mail-in ballot “is timely received” by a county election board. Provisional ballots are cast in-person when there’s a question about a voter’s eligibility. After polls close, county election boards go through provisional ballots to check if those voters are, in fact, eligible.

In a 4-3 decision, the state court held on Oct. 23 that because a “naked” ballot is invalid, there are “no other ballots attributable” to a voter that would fall under the provisional ballot disqualification.

Justice Christine Donohue wrote in the majority opinion that the goal of the law is to prevent double voting, which isn’t possible when a mail-in ballot is tossed out as defective.

While the Republicans and their backers argued that not allowing the provisional ballots was a matter of “election integrity,” Donohue wrote, “we are at a loss to identify what honest voting principle is violated by recognizing the validity of one ballot cast by one voter.”

Republicans argued that the state law doesn’t include a carve-out for disqualified ballots that are “timely received” when it prohibits the voter from casting a provisional ballot.

In asking the US Supreme Court to step in, Republicans contend that the state’s high court distorted what the Pennsylvania legislature intended in adopting the provisional ballot rule, in violation of the US Constitution’s elections clause.

To contact the reporter on this story:
Zoe Tillman in Washington at ztillman2@bloomberg.net

To contact the editors responsible for this story:
Sara Forden at sforden@bloomberg.net

Elizabeth Wasserman, Steve Stroth

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