Some voters do not put their ballot in the required outer envelope, or they do not include a signature or a date.
The dispute could affect several thousand votes across a state that is expected to be pivotal in the presidential race between Vice President Kamala Harris and former President Trump.
In an emergency appeal, the RNC lawyers said the justices should overturn a recent ruling by Pennsylvania’s state supreme court and forbid the counting of provisional ballots by voters who made a mistake in submitting their mail ballots.
The Supreme Court’s conservatives have been skeptical of late changes in the voting rules.
Earlier this month, the state justices refused to rule on whether it was unconstitutional to reject these otherwise valid votes for what one judge described as meaningless paperwork errors.
But last week, the state justices ruled by a 4-3 vote in a different lawsuit that such voters had a right to file a provisional ballot, which could be counted.
Voting rights advocates welcomed the ruling, which would apply in all 67 counties.
“Today’s decision affirms that if you make a paperwork mistake that will keep your mail ballot from counting, you have the right to vote by provisional ballot at your polling place on election day,” said Ben Geffen, an attorney for the Public Interest Law Center.
But Republicans called the decision a last-minute change in the rules and a violation of the state’s law on mail voting.
“This question is tremendously important and merits this Court’s attention,” the RNC said. “In recent Pennsylvania elections, tens of thousands of ballots have been rejected for violating mandatory election rules — and voters got no mulligan in those elections.”
If the court does not intervene, they said “tens of thousands of provisional votes that are flatly illegal under the Election Code are likely to be counted. That outcome risks tainting—or even flipping—the result of one or more elections in Pennsylvania, including its statewide U.S. Senate race or even the nationwide Presidential Election.”
The justices are likely to weigh in soon. They could order county officials to set aside the provisional votes so they can be tallied separately.
A similar dispute arose in Pennsylvania four years ago involving a few thousand mail ballots that arrived after the election. But the legal dispute did not affect the outcome because President Biden won the state by about 80,000 votes.
