Last week, the Pennsylvania Supreme Court issued a ruling interpreting the Pennsylvania Election Code against the backdrop of the Pennsylvania constitution’s guarantee of the right to vote and have one’s vote counted absent a good reason for government not to count it. In particular, the Pennsylvania Justices by a 4-3 vote held that when a voter tries to vote by mail during the early voting period but has her ballot rejected because she did not seal the ballot in a security envelope (an envelope within the envelope used to return the ballot), the voter can then cast (and have counted) a provisional ballot in person on Election Day. Pennsylvania’s Election Code provides that “Except as provided [in a subsequent section], the county board of elections . . . shall count [a provisional] ballot if [the board] confirms that the individual did not cast any other ballot, including an absentee ballot, in the election. . . . A provisional ballot shall not be counted if the elector’s [mail-in] ballot is timely received by a county board of elections” (emphasis added). The Pennsylvania Supreme Court ruled that these provisions mean that someone who has successfully cast a mail-in ballot that will be counted is not entitled to cast a provisional in-person ballot to counteract or override the earlier, mailed-in vote, but that if a person’s attempt to submit a valid mail-in ballot was unsuccessful because, even though it was timely received, it was not properly sealed, then the Code does not foreclose the casting (and counting) of a provisional ballot.
The Pennsylvania Supreme Court’s result certainly makes intuitive sense. If someone’s attempt to submit a mail-in ballot that will count is unsuccessful and that ballot will not be included in the vote tally, why shouldn’t that voter be able to vote in person? After all, the voter is not changing a vote that would have otherwise counted, nor is she trying to have her preferences counted twice.
The only argument against allowing provisional voting in this circumstance is that the language of the Code, read one way, would foreclose it. But the language of the Code can be read in other ways. For example, a “mail-in ballot” might be read to mean something that will be counted – if its flaws prevent it from being counted, then a voter submission is not considered a true “ballot” for these purposes. And a vote might be understood to be “cast” only if it is submitted in a way that will be counted. Attempting to cast a ballot and actually casting one might not be the same thing. On top of these ambiguities, the state constitutional backdrop suggesting the voters should have their intent count absent a good reason to the contrary supports the Pennsylvania Supreme Court’s interpretation permitting provisional ballots in these instances. As the Pennsylvania court said: “It is difficult to discern any principled reading of the Free and Fair Election Clause [of the state constitution] that would allow disenfranchisement of voters as a punishment for failure to conform to the mail-in voting requirements when voters properly availed themselves of the provisional voting mechanism.”
Yet two days ago the Republican National Committee (RNC), who had intervened in the case in the lower state courts, filed an Application in the U.S. Supreme Court asking the high Court to stay (or block) the Pennsylvania Supreme Court ruling from being used in next week’s election pending further review in the U.S. Supreme Court, or, in the alternative, asking the high Court to order that the provisional ballots whose counting was required by the Pennsylvania court rulings be segregated from other ballots, presumably so that the validity of these ballots can be challenged after Election Day. To obtain such extraordinary relief, the RNC Applicants need to demonstrate they have a likely winning claim that the counting of provisional ballots as directed by the Pennsylvania courts would violate federal law. Unfortunately for the Applicants, their arguments on the merits fall woefully short.
First, Applicants argue that the Pennsylvania courts ran afoul of the so-called Purcell constraints, outlined by the U.S. Supreme Court in 2006 in Purcell v. Gonzalez. Under Purcell, lower federal courts (and perhaps the U.S. Supreme Court itself) are supposed to refrain from issuing remedies that would alter the rules for election administration in the runup to Election Day. Purcell is ostensibly grounded in a desire that the federal judiciary not contribute to voter confusion, unfair frustration of reliance by voters (and perhaps candidates and campaigns), hiccups in election administration, and public doubt about the integrity of election results. But Purcell has never before been invoked by the U.S. Supreme Court to regulate what state judges and other state officials can do. Purcell thus far has instead been understood to be a doctrine focused on the remedial limitations of federal courts. For this reason, the Applicants’ invocation of Purcell actually boomerangs – because the U.S. Supreme Court would (if it granted any of the requested relief) be interfering with the orderly election processes in Pennsylvania. In this respect, it should be noted that the Pennsylvania Supreme Court last week affirmed, rather than reversed, the intermediate state appellate court; the operational rule in effect for the last two-and-a-half months has been that a provisional ballot would be counted if an earlier mailed-in ballot was rejected for lack of a security envelope. People very easily could have relied on the availability of provisional ballots that would count in choosing not to try to get replacement absentee ballots (to replace the botched ones they had tried to earlier submit) and send those replacement ballots in before the close of early voting. Indeed, news outlets advised voters of the effective provisional-ballot option over the past several weeks. By contrast, it is hard to see how anyone might have relied on the pre-August state of affairs in which the availability of provisional-ballot voting that would count in this setting was not clear; nobody as far as I can see even might have undertaken any course of action in reliance on the unavailability of provisional-ballot voting. Given this background, any federal court (including the Supreme Court) that steps in now would seem to implicate Purcell‘s stated concerns about messing with expectations and creating chaos.
The Applicants’ other merits argument is even more ambitious, and even more flawed. In that argument, they seize on language at the end of the U.S. Supreme Court’s 2023 Moore v. Harper ruling (that repudiated the so-called Independent-State-Legislature, or ISL, theory under which elected state legislatures are entitled, when regulating federal elections, to have their will enforced even if the elected legislature’s enactments contravene the state constitution) that state courts cannot, when issuing rulings that implicate federal elections, “evade” federal constitutional rights and provisions. The Applicants argue that the (seemingly garden-variety) statutory interpretation against the backdrop of a state constitution engaged in by the Pennsylvania Supreme Court amounts to a usurpation of the authority of the Pennsylvania General Assembly (its elected legislative body) that in turn violates the federal Constitution (in particular the so-called Elections Clause of Article I governing congressional elections and the so-called Electors Clause of Article II governing presidential selection).
While I would have preferred the U.S. Supreme Court had been a bit more careful in its language at the end of Harper, there is simply no way to rationally conclude that what the Pennsylvania Supreme Court did last week violates the Elections and Electors Clauses. To see this clearly, we must dissect (as I do in this concise but thorough law review article) the end of the Harper ruling and analyze it in the context of the whole Harper decision, to wit:
- The passage at the end Harper that Applicants lean on, that “state courts may not so exceed the bounds of ordinary judicial review as to unconstitutionally intrude upon the role specifically reserved to state legislatures by Article I, Section 4, of the Federal Constitution” simply cannot be read without ALSO considering that the Court, in an earlier and much more developed part of the opinion, said (after embracing the outcome and reasoning of the 2015 Arizona case upholding the complete divestment of power from the elected legislature and conferral of federal-election regulation power in an Independent Redistricting Commission) that “although the Elections Clause expressly refers to the ‘Legislature,’ it does not preclude a State from vesting congressional redistricting authority in a body other than the elected group of officials who ordinarily exercise lawmaking power.”
- Perhaps these two passages are at complete war with each other, and interpreters (and the Court) will have to choose between them. If so, the second passage quoted above would surely control, since the Court cited, discussed, and doubled down on the Arizona case so many, many times, and you simply can’t disrespect the role of elected legislators any more than taking their power away altogether. Moreover, and more importantly, the logic of the Arizona case (which the Court said was in the same vein as that of Smiley v. Holm, involving gubernatorial involvement in federal-election regulation) is something that according to Harper majority, per Chief Justice John Roberts, “commands [the Court’s] continued respect.” So if there is a dog and a tail, the dog is the embrace of the Arizona case and the Court’s acceptance in Harper of the Arizona case’s premise that “States . . . retain autonomy to establish their own governmental processes.”
- But, of course, no interpreter should ever start by assuming that different parts of a Supreme Court opinion are irreconcilable. Instead, ways of harmonizing different passages of an opinion are, if possible, to be sought. In the context of Harper, the reference in the last part of the case to “the role specifically reserved to state legislatures” can be read to mean the role specifically reserved to state governmental processes. In other words, the reference to “legislature” at the very end is not a reference to a particular entity within state government—it simply can’t be if we take at face value the Court’s repeated embrace of the Arizona case whose outcome completely displaced the ordinary legislature—but instead a reference to state lawmaking systems, whatever they may be in a particular state.
- In other words, the reaffirmation of the Arizona case has to mean that “legislature” in Article I (and also Article II) is synonymous with “state.” And that the only requirement in the Elections (or Electors) Clause—the only “federal right” that federal judicial review can enforce—is that states comply with their own law. Not their own statutory enactments (even Justice Brett Kavanaugh’s concurrence and Clarence Thomas’s dissent make clear that Chief Justice William Rehnquist’s earlier insistence in Bush v. Gore that statutory enactments be given primacy has been rejected), but their own law, including state constitutional substantive commands, and state constitutional divisions of power among various organs of government (including state courts empowered to undertake state constitutional judicial review). This reading still attaches meaning to the Elections/Electors Clause—that states are not free to deviate from state law. (Or put another way, that federal law effectively incorporates state law in each of the states, what Justice Thomas calls “a federalization” of state constitutional law.)
- But this residual meaning of the Elections/Electors Clause, while certainly giving rise to federal-court subject-matter jurisdiction, is on the merits much narrower than what the Applicants seem to argue. Again, after Moore, all that the federal Constitution requires is that states follow their own law—not that their own law must or can’t empower any particular institution such as a court, or protect any particular substantive values.
- And, of course, absent some independent antecedent federal norm (which exists in the Takings Clause and Contracts Clause contexts that Chief Justice Roberts’s opinion in Harper mentions but that does not exist in the Elections/Electors Clause after the ISL theory that the elected legislature’s enactments must be followed notwithstanding what higher state law says was repudiated), state courts would almost always be the ones to determine and pronounce what state law is.
- To be sure, it is possible in a rare case that state courts lawlessly make up results in ways that defy any reasonable reading of what state law might actually be. But that doesn’t seem a remotely fair way to describe the Pennsylvania Supreme Court’s ruling last week (even if one disagrees with it on the merits). Moreover, and this point is more important than any formulation of how deferential federal courts have to be in this realm, if state courts are making up stuff and applying that fabricated stuff to federal elections in a way that violates the Elections/Electors Clause (insofar as the state court is flouting state law and thus can’t be legitimately thought of as speaking on behalf of the state), such irrational or willful flouting of state law would also fail to satisfy even rational basis review (much less heightened scrutiny) that would be applicable to state elections too. So if the Supreme Court wants to second-guess state courts on the meaning of state law as regards federal elections, it will have to be prepared to say the state-court rulings in question also couldn’t be applied to state elections. That means that if the U.S. Supreme Court wants to say last week’s ruling by the Pennsylvania Supreme Court so distorts and misreads state law that the ruling cannot be applied to the congressional and presidential elections, neither can it be applied to elections for state officials from dog catchers all the way to the governor’s office. And I rather doubt that kind of federalism incursion is what Chief Justice Roberts or Justices Barrett or Kavanaugh (or even Justice Thomas) would want.