SCOTUS has no jurisdiction in Pennsylvania provisional ballots case, Democrats argue

The U.S. Supreme Court has no jurisdiction to hear a GOP appeal in a pivotal Pennsylvania election law case, the state Democratic party and the Democratic National Committee argued in a court filing Friday.

The Republican National Committee and the Republican Party of Pennsylvania asked the high court in January to hear their appeal of a Pennsylvania Supreme Court decision on provisional ballots issued days before last year’s presidential election.

In a 4-3 decision, the state’s highest court affirmed voters’ rights in the commonwealth to cast provisional ballots and have them counted, if they learn their mail-in ballots have been rejected.

In a brief opposing the GOP’s petition, the state Democratic Party and the DNC argue the Pennsylvania Supreme Court is the ultimate authority in the case. Granting the appeal would set a precedent invalidating state supreme court jurisdiction in election law cases across the country.

“Granting certiorari here would almost surely engender requests for this Court’s review of any and every state-law election case, burdening the Court with invitations to weigh in on all manner of (often time-sensitive) state-election-law disputes,” Democratic party lawyers argue. “That is not a regime the Court should foster.”

The case is Republican National Committee, et al. v. Faith Genser, et al. 

Four days before the Nov. 5 election, the U.S. Supreme Court denied the RNC’s request for an emergency stay against the state Supreme Court ruling. Justice Samuel Alito said the court declined the request “because it would not impose any binding obligation on any of the Pennsylvania officials who are responsible for the conduct of this year’s election.”

Pennsylvania Democratic Party Chairperson Sharif Street said in a statement the DNC is fighting to ensure Pennsylvanians have their votes counted.

“Pennsylvania Republicans are trying to game the vote in their favor and that’s why they’re trying to upend Pennsylvania’s sovereignty and end a long-standing voting practice in the state,” Street said. “With important Pennsylvania elections in November and in 2026, Democrats aren’t taking anything to chance when it comes to winning back the state.”

DNC Chairperson Ken Martin said “Pennsylvanians deserve to have their votes counted in every election – full stop. Simple errors on mail-in ballots shouldn’t impede Pennsylvanians from exercising their rights at the ballot box.”

Lawyers for the RNC and Republican Party of Pennsylvania did not immediately return calls Friday.

The underlying case involves two Butler County voters who were told their mail-in ballots had been rejected because they neglected to seal them inside secrecy envelopes before returning them. The voters went to their polling places for the primary  in 2024 and voted by provisional ballot.

The Butler County Board of Elections, however, told the voters that their provisional ballots would not be counted. Represented by the Public Interest Law Center and the American Civil Liberties Union of Pennsylvania, the voters challenged the board’s decision and won favorable decisions in Commonwealth Court and the state Supreme Court.

In an opinion for the Pennsylvania Supreme Court majority, Justice Christine Donohue wrote that the Butler County Board of Elections correctly rejected the voters’ mail-in ballots because they did not comply with the Election Code’s requirement to use a plain envelope to ensure the anonymity of ballots. 

But Donohue said the county board erred by refusing to count provisional ballots the voters cast at their polling places after learning their mail ballots were fatally flawed. The Election Code requires county elections officials to count provisional ballots if no other ballot is attributable to the voter and provided there are no issues that would disqualify the provisional ballot, the court’s majority found.

In its petition to the U.S. Supreme Court, the GOP argues the state Supreme Court usurped the Pennsylvania Legislature’s authority to set the “times, places and manner” for congressional elections, leaning on a premise known as the “independent state legislature theory.” That theory asserts that the U.S. Constitution reserves the authority to set the times, places and manner of elections exclusively for state legislatures.

In opposition, the DNC and Pennsylvania Democratic Party assert that the U.S. Supreme Court lacks jurisdiction, because the case falls outside the limited circumstances in which it can review the judgment of a state’s highest court. Such appeals are allowed only when a federal law is in question, a state law is claimed to conflict with federal law or “where any title, right, privilege, or immunity is specially set up or claimed under the Constitution.”

The GOP is not challenging the validity of any federal or state law, the Democratic brief says. “Far from it, petitioners seek federal-court enforcement of a state statute — as they, rather than the state’s highest court, interpret it,” the Democratic party argues.

And the U.S. Supreme Court has made clear that a petitioner may claim a constitutional right only for itself and not a third party, the party said.

“Petitioners — the Butler County Board of Elections, the Republican National Committee, and the Republican Party of Pennsylvania — cannot claim any right or privilege for themselves under the Elections or Electors Clauses,” the Democratic brief says.

The U.S. Supreme Court also lacks jurisdiction, the brief says, because the GOP did not raise its claim about the state legislature’s sole authority over federal elections until the case got to the state Supreme Court, which ruled that the claim had been waived.

In the brief, the DNC and Pennsylvania Democratic Party argue that there are no conflicting court decisions on the question of counting provisional ballots. It also refutes the GOP claim the Pennsylvania Supreme Court “exceeded the bounds of ordinary judicial review,” with its ruling.

By providing a response to a question about the meaning and intent of a state law in a case duly raised by the litigants on its normal appellate docket, the brief says, the Pennsylvania Supreme Court was “quite literally” just doing its “job.”