Petition for Writ of Certiorari — Republican National Committee, et al., Petitioners v. Faith Genser, et al.
Supreme Court briefJan 21, 2025
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No. ____
IN THE
Supreme Court of the United States
REPUBLICAN NATIONAL COMMITTEE, ET AL.,
Petitioners,
v.
FAITH GENSER, ET AL.,
Respondents.
On Petition for a Writ of Certiorari
to the Supreme Court of Pennsylvania
PETITION FOR A WRIT OF CERTIORARI
JULIE M. GRAHAM
BUTLER COUNTY
SOLICITOR’S OFFICE
124 W. Diamond St.
Butler, PA 16001
(724) 284-5233
Counsel for Petitioner Butler
County Board of Elections
JOHN M. GORE
Counsel of Record
E. STEWART CROSLAND
LOUIS J. CAPOZZI III
RILEY W. WALTERS
JONES DAY
51 Louisiana Ave., NW
Washington, DC 20001
(202) 879-3939
jmgore@jonesday.com
Counsel for Republican
Party Petitioners
(Additional counsel on inside cover)
KATHLEEN GALLAGHER
THE GALLAGHER FIRM, LLC
436 Seventh Ave., 13th Floor
Pittsburgh, PA 15219
(412) 308-5512
THOMAS W. KING, III
THOMAS E. BRETH
DILLON, McCANDLESS,
KING, COULTER &
GRAHAM, LLP
128 W. Cunningham St.
Butler, PA 16001
(724) 283-2200
Counsel for Republican Party Petitioners
i
QUESTIONS PRESENTED
The Elections and Electors Clauses of the U.S.
Constitution vest the power to set federal election
rules in the legislature of each state. Exercising that
power, the Pennsylvania General Assembly
unambiguously directed that election officials “shall
not” count an individual’s provisional ballot if they
“timely received” a mail ballot cast by that person. 25
Pa. Stat. § 3050(a.4)(5)(ii)(F).
Turning that
requirement on its head, a 4–3 majority of the
Pennsylvania Supreme Court decreed that election
officials must count provisional ballots cast by
individuals whose mail ballots were timely received
but were defective for some other reason. The
questions presented are:
1. What is the legal standard for determining
whether a state court’s interpretation of state election
law exceeds the bounds of ordinary judicial review and
therefore violates the Elections and Electors Clauses?
2. Did the Pennsylvania Supreme Court exceed
the bounds of ordinary judicial review and thereby
usurp the General Assembly’s plenary authority to
prescribe “[t]he Times, Places, and Manner” for
congressional elections, U.S. Const. art. I., § 4, cl. 1.,
and broad power to “direct” the “Manner” for
appointing electors for President and Vice President,
id. art. II, § 1, cl. 2?
ii
PARTIES TO THE PROCEEDING AND RULE
29.6 STATEMENT
Petitioners are the Republican National Committee
and the Republican Party of Pennsylvania
(intervenors below) and the Butler County Board of
Elections (defendant below). The Republican Party
Petitioners have no parent corporation, and no
publicly held company owns 10% or more of their stock.
Respondents are Faith Genser, Frank Matis, and
the Pennsylvania Democratic Party.
January 21, 2025
/s/ John M. Gore
JOHN M. GORE
JONES DAY
51 Louisiana Avenue, NW
Washington, DC 20001
(202) 879-3939
jmgore@jonesday.com
iii
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED........................................ i
PARTIES TO THE PROCEEDING AND RULE
29.6 STATEMENT ................................................. ii
TABLE OF AUTHORITIES ...................................... vi
INTRODUCTION ....................................................... 1
OPINIONS BELOW ................................................... 4
JURISDICTION ......................................................... 4
CONSTITUTIONAL PROVISIONS AND
STATUTES ............................................................. 4
STATEMENT OF THE CASE ................................... 4
A. Pennsylvania’s Mandatory Rules for
Mail Ballots ................................................... 4
B. Pennsylvania’s Provisional Ballot
Rules .............................................................. 5
C. The Butler County Board of
Elections Complied With the
Election Code in the 2024 Primary
Election .......................................................... 7
D. Procedural History ........................................ 8
REASONS FOR GRANTING THE WRIT ............... 14
I.
THE PENNSYLVANIA SUPREME
COURT VIOLATED THE U.S.
CONSTITUTION. ............................................. 16
iv
A. A State Court Exceeds the Bounds of
Ordinary Judicial Review When It
Distorts State Law Beyond What a
Fair Reading Requires ................................ 19
B. The Pennsylvania Supreme Court’s
Decision Exceeded the Bounds of
Ordinary Judicial Review ........................... 22
II.
THE PETIITON RAISES IMPORTANT
AND RECURRING QUESTIONS THAT
IMPLICATE A SPLIT OF AUTHORITY .......... 29
III. THIS CASE IS AN IDEAL AND CLEAN
VEHICLE FOR RESOLVING THESE
EXCEPTIONALLY IMPORTANT AND
RECURRING QUESTIONS ............................. 32
CONCLUSION ......................................................... 36
APPENDIX A: Opinion of the Supreme Court of
Pennsylvania (Oct. 23, 2024) .............................. 1a
APPENDIX B: Concurring Opinion of Justice
Dougherty (Oct. 23, 2024) .................................. 58a
APPENDIX C: Dissenting Opinion of Justice
Mundy (Oct. 23, 2024) ........................................ 61a
APPENDIX D: Dissenting Opinion of Justice
Brobson (Oct. 23, 2024) ...................................... 68a
APPENDIX E: Constitutional Provisions and
Statutes ............................................................ 100a
APPENDIX F: Principal Brief of Appellants in the
Supreme Court of Pennsylvania
(Sept. 24, 2024) ................................................. 115a
v
APPENDIX G: Petition for Allowance of Appeal in
the Supreme Court of Pennsylvania
(Sept. 8, 2024) ................................................... 168a
APPENDIX H: Declaration of Angela Alleman in
the United States Supreme Court
(Oct. 30, 2024) .................................................. 213a
vi
TABLE OF AUTHORITIES
Page(s)
CASES
Ariz. State Legislature v. Ariz. Indep.
Redistricting Comm’n,
576 U.S. 787 (2015) .............................................. 16
ASARCO Inc. v. Kadish,
490 U.S. 605 (1989) .............................................. 34
Ball v. Chapman,
289 A.3d 1 (Pa. 2023) ............................................. 5
Brnovich v. Democratic Nat’l Comm.,
594 U.S. 647 (2021) .............................................. 27
Black Political Empowerment Project v. Schmidt,
2024 WL 4002321
(Pa. Commw. Ct. Aug. 30, 2024) .......................... 31
Bush v. Gore,
531 U.S. 98 (2000) .................. 17, 19, 20–22, 24, 25
Bush v. Palm Beach Cnty. Canvassing Bd.,
531 U.S. 70 (2000) ................................... 16, 17, 19,
.............................................. 20, 25
Camreta v. Greene,
563 U.S. 692 (2011) .............................................. 35
Carson v. Simon,
978 F.3d 1051 (8th Cir. 2020) .......................... 2, 30
CBS, Inc. v. FCC,
453 U.S. 367 (1981) .............................................. 26
vii
Cook v. Gralike,
531 U.S. 510 (2001) ........................................ 16, 17
Democratic Nat’l Comm. v. Wis. State
Legislature,
141 S. Ct. 28 (2020) ........................................ 32, 33
Exxon Mobil Corp. v. Allapattah Servs.,
Inc.,
545 U.S. 546 (2005) .................................. 21, 22, 25
In re Allegheny Cnty. Provisional Ballots
in the 2020 Gen. Election,
2020 WL 6867946
(Pa. Commw. Ct. Nov. 20, 2020) ............ 8, 9, 10, 35
In re Canvass of Absentee and Mail-in
Ballots,
241 A.3d 1058 ................................................. 31, 35
In re Canvass of Absentee Ballots of Nov.
4, 2003 General Election,
843 A.2d 1223 (Pa. 2004) ..................................... 22
Kanter v. Barr,
919 F.3d 437 (7th Cir. 2019) ................................ 26
McPherson v. Blacker,
146 U.S. 1 (1892) .................................................. 17
Mecinas v. Hobbs,
30 F.4th 890 (9th Cir. 2022) ................................ 35
Migliori v. Cohen,
36 F.4th 153 (3d Cir. 2022) .................................. 31
viii
Moore v. Harper,
142 S. Ct. 1089 (2022) ......... 1, 3, 14, 15, 18, 29, 33
Moore v. Harper,
600 U.S. 1 (2023) ....................... 1–4, 14, 15, 18–22,
............................................. 24, 28, 33, 35
Pa. Democratic Party v. Boockvar,
238 A.3d 345 (Pa. 2020) ................ 2, 5, 6, 9, 10, 24,
................................................ 26, 28, 30
Republican Nat’l Comm. v. Genser,
--- S. Ct. ---, 2024 WL 4647792
(Nov. 1, 2024).............................................. 1, 14, 29
Republican Party of Pa. v. Boockvar,
141 S. Ct. 1 (2020) ................................................ 15
Republican Party of Pa. v.
Degraffenreid,
141 S. Ct. 732 (2021) ............ 2, 3, 15, 21, 25, 29–33
Roudebush v. Hartke,
405 U.S. 15 (1972) ................................................ 27
Smiley v. Holm,
285 U.S. 355 (1932) ........................................ 16, 17
Storer v. Brown,
415 U.S. 724 (1974) .............................................. 17
Wise v. Circosta,
2020 WL 6156302
(4th Cir. Oct. 20, 2020)......................................... 16
ix
CONSTITUTIONAL AND STATUTORY AUTHORITIES
U.S. Const. art. I, § 4, cl. 1 ........................................ 16
U.S. Const. art. II, § 1, cl. 2 ................................. 16, 17
Pa. Const. art. VII, § 4 ................................................. 5
1 Pa. Stat. § 1921 ......................................................... 4
25 Pa. Stat. § 3050 ..................... 2, 6, 10, 11, 22–26, 28
25 Pa. Stat. § 3146.6 ................................................ 4–6
25 Pa. Stat. § 3146.8 ........................................ 4, 24, 27
25 Pa. Stat. § 3150.16 ........................................ 4–6, 22
28 U.S.C. § 1257 .......................................................... 4
Pa. Leg. Serv. Act 2019-77 ...................................... 4, 5
OTHER AUTHORITIES
Vikram Amar, Why the Supreme Court
Should Absolutely Not Grant Relief
or Review in Genser v. Butler County
Board of Elections, as the Republican
National Committee Requested This
Week, Verdict (Oct. 30, 2024) ................................. 3
Assemb. Sess. 46 (Pa. 2019) ........................................ 5
Cast, American Heritage Dictionary
(2022) .................................................................... 23
x
Daniel J. Hopkins et al., How Many
Naked Ballots Were Cast in
Pennsylvania’s 2020 General
Election?, MIT Election Data +
Science Lab (Aug. 26, 2021) ................................. 31
Pa. House Bill 1300, Regular Session
2021-2022 ............................................................... 6
Sup. Ct. R. 10 ............................................................. 14
Void, American Heritage Dictionary
(2022) .................................................................... 26
1
INTRODUCTION
The Elections and Electors Clauses of the U.S.
Constitution “expressly vest[] power” to set federal
election rules “in ‘the Legislature’ of each State.”
Moore v. Harper, 600 U.S. 1, 34 (2023). This Court
accordingly has “an obligation to ensure that state
court interpretations of [state] law do not evade” those
grants of authority. Id. Indeed, at least four members
of the Court have recognized that “the extent of a state
court’s authority to reject rules adopted by a state
legislature for use in conducting federal elections”
“presents an exceptionally important and recurring
question of constitutional law.” Moore v. Harper, 142
S. Ct. 1089, 1089 (2022) (Alito, J., joined by Thomas,
J., and Gorsuch, J., dissenting from denial of
application for stay); id. (Kavanaugh, J., concurring in
denial of application for stay) (agreeing that the issue
is “important” and “is almost certain to keep arising
until the Court definitively resolves it”); see also
Republican Nat’l Comm. v. Genser, --- S. Ct. ---, 2024
WL 4647792, at *1 (November 1, 2024) (statement of
Alito, J., joined by Thomas, J., and Gorsuch, J.) (noting
that this case presents “a matter of considerable
importance”).
Just two terms ago, the Court “articulated a general
principle” for reviewing state-court interpretations of
federal election rules, Moore, 600 U.S. at 40
(Kavanaugh, J., concurring): “[S]tate courts may not
transgress the ordinary bounds of judicial review such
that they arrogate to themselves the power vested in
state legislatures to regulate federal elections,” id. at
36 (maj. op.). The Court, however, declined to “adopt
[a] test by which [it] can measure” whether a state
court has crossed the constitutional line. Id. Lower
2
courts thus lack definitive guidance on how to apply
the Elections and Electors Clauses, and have
predictably split on that question.
See, e.g.,
Republican Party of Pa. v. Degraffenreid, 141 S. Ct.
732, 734 (2021) (Thomas, J., dissenting from the denial
of certiorari) (acknowledging the “divide”); compare
also Carson v. Simon, 978 F.3d 1051, 1059-60 (8th Cir.
2020), with Pa. Democratic Party v. Boockvar, 238
A.3d 345, 369-72 (Pa. 2020).
The Pennsylvania Supreme Court exacerbated that
split in this case. The Pennsylvania General Assembly
has unambiguously directed that “[a] provisional
ballot shall not be counted if … the elector’s [mail]
ballot is timely received by a county board of
elections.” 25 Pa. Stat. § 3050(a.4)(5)(ii)(F) (emphasis
added). 1 But in a sharply divided 4–3 decision, the
Pennsylvania Supreme Court decreed that election
officials shall count a provisional ballot cast by an
individual whose mail ballot was timely received but
could not be counted because it violated a mandatory
rule, such as by lacking a signature, date, or secrecy
envelope. See Pet.App. 36a-48a. As Justice Mundy
stressed in dissent, that “holding usurps the
legislature’s unmistakable directives and supplants
them with a new’’ judicially created “procedure for
counting provisional ballots.” Pet.App. 65a. She
therefore rightly described the ruling as “an
unconstitutional intrusion upon the role reserved to
state legislatures by the Federal Constitution.”
Pet.App. 66a.
1 This Petition uses “mail ballot” to encompass both “absentee”
and “mail-in” ballots created in the Election Code. See, e.g., 25
Pa. Stat. § 3050(a.4)(5)(ii)(F).
3
This case presents an ideal vehicle for the Court to
fulfill Moore’s promised enforcement of the Elections
and Electors Clauses and to “distill” its “general
principle” for applying the Clauses “into a more
specific standard.” Moore, 600 U.S. at 40 (Kavanaugh,
J., concurring). In particular, this case can be resolved
free from the pressure of an impending election, “after
full briefing and oral argument,” Moore, 142 S. Ct. at
1089 (Kavanaugh, J., concurring in denial of
application for stay), and thus can “provide invaluable
guidance for future elections,” Degraffenreid, 141 S.
Ct. at 739 (Alito, J., dissenting from the denial of
certiorari). It also features a straightforward question
of statutory interpretation rather than potentially
hard questions that might arise when reviewing statecourt interpretations of state constitutions. Moore,
600 U.S. at 63-64 (Thomas, J., dissenting). And unlike
in Moore, there are no vehicle problems that would
hamper this Court’s review.
At bottom, this case is an important test for whether
the Court will provide meaningful review of statecourt interpretations of federal election rules. One
scholar writing about this case and supporting
Respondents’ legal position has argued that Moore’s
promise of judicial review should be read out of the
opinion. See Vikram Amar, Why the Supreme Court
Should Absolutely Not Grant Relief or Review in
Genser v. Butler County Board of Elections, as the
Republican National Committee Requested This Week,
Verdict (Oct. 30, 2024), https://tinyurl.com/35wjtc4x.
Failure to correct the Pennsylvania Supreme Court’s
indefensible distortion of the General Assembly’s laws
would effectively do just that by sending a strong
message that judicial review under the Elections and
4
Electors Clauses is illusory. The result would directly
contravene the Constitution: State courts would be
left with “free rein” to usurp legislatures’
constitutional function and to rewrite federal election
rules with impunity. Moore, 600 U.S. at 34. The Court
should grant the petition.
OPINIONS BELOW
The Pennsylvania Supreme Court’s decision
(Pet.App. 1a-57a) is reported at 325 A.3d 458.
JURISDICTION
The Pennsylvania Supreme Court issued its
decision on October 23, 2024.
This Court has
jurisdiction under 28 U.S.C. § 1257(a).
CONSTITUTIONAL PROVISIONS AND
STATUTES
The Elections Clause and the Electors Clause of the
U.S. Constitution, 1 Pa. Stat. § 1921, and 25 Pa. Stat.
§§ 3050(a.4)(5)(i)-(ii), 3146.6, 3146.8, 3150.16 are
reproduced in the appendix to the petition (Pet.App.
100a-114a).
STATEMENT OF THE CASE
A. Pennsylvania’s
Mail Ballots
Mandatory
Rules
for
Before the 2020 election cycle, Pennsylvania
permitted only a limited subset of voters to vote
absentee and to submit their ballots by mail. 25 Pa.
Stat. § 3146.6 (2018). That changed in 2019, when the
General Assembly enacted and the Governor signed
Act 77, one of the most significant pieces of
Pennsylvania legislation in decades. 2019 Pa. Leg.
Serv. Act 2019-77 (approved Oct. 31, 2019). Act 77
embodied a grand bipartisan compromise: Although
5
representatives of both parties objected to parts of the
bill, they also recognized the reform as a valuable step
forward that offered necessary concessions to all sides.
See Legislative Journal – Senate: Senate Concurs in
House Amendments, 203d Gen. Assemb. Sess. 46 at
1000
(Pa.
2019),
https://www.legis.state.pa.us/WU01/LI/SJ/2019/0/Sj2
0191029.pdf (statement of Senator Boscola, a
Democrat); id. at 1002 (statement of Senator Majority
Leader Corman, a Republican). Among much else, Act
77 amended the Pennsylvania Election Code to permit
all Pennsylvanians to vote by mail without excuse.
As part of the compromise—which was protected by
a non-severability clause, see Act 77, § 11—the bill also
included
certain
mandatory
rules
that
Pennsylvanians voting by mail must follow to have
their ballots counted. As relevant here, voters who
cast mail ballots must seal their ballots in a secrecy
envelope, see 25 Pa. Stat. §§ 3146.6(a), 3150.16(a),
which protects privacy in voting, Pa. Const. art. VII,
§ 4. Secrecy envelopes, in turn, are placed within
mailing envelopes bearing a declaration that voters
must sign and date. Pet.App. 3a. The secrecyenvelope, signature, and date requirements are
“mandatory,” and a voter’s “failure to comply …
renders the ballot invalid” and ineligible for counting
by election officials. Pa. Democratic Party, 238 A.3d at
380; see Ball v. Chapman, 289 A.3d 1, 20 (Pa. 2023)
(confirming date requirement is mandatory).
B. Pennsylvania’s Provisional Ballot Rules
The Election Code permits Pennsylvanians to cast
provisional ballots on Election Day in certain limited
situations. See Pa. Democratic Party, 238 A.3d at 375
6
n.28. For example, an in-person voter who is unable
to produce required identification at the polling place,
see, e.g., 25 Pa. Stat. § 3050(a.2), or whose registration
to vote cannot be verified, id. § 3050(a.4)(1), may cast
a provisional ballot. Likewise, a voter “who requests
[a mail] ballot and who is not shown on the district
register as having voted” can vote provisionally. Id.
§§ 3146.6(b)(2), 3150.16(b)(2). Such a voter will not
“hav[e] voted,” for example, if he failed to return the
mail ballot he requested. Id.
At the same time, the Election Code unambiguously
directs that a “provisional ballot shall not be counted
if … the elector’s absentee ballot or mail-in ballot is
timely received by a county board of elections.” Id.
§ 3050(a.4)(5)(ii)(F).
This provision reflects the General Assembly’s
policy judgment that electors voting by mail should
have “one chance to cast a valid ballot.” Pet.App. 97a
n.18 (Brobson, J., dissenting). Indeed, the General
Assembly has been debating whether to give electors
who submit defective mail ballots a do-over, but it has
deliberately chosen not to do so. See, e.g., Pa. House
Bill 1300, Regular Session 2021-2022 (vetoed
legislation creating curing process for mail ballots); see
also Pa. Democratic Party, 238 A.3d at 372-74 (holding
that state constitution gives individuals who submit
defective mail ballots no right to cure those ballots).
The provision also reduces the burden on county
election officials by reinforcing the limits on
provisional voting, limiting the number of voters who
attempt to vote provisionally on Election Day, and
prescribing clear and quick disposition of provisional
ballots cast by voters who already submitted timely
mail ballots.
7
C. The Butler County Board of Elections
Complied With the Election Code in the
2024 Primary Election.
Respondents Faith Genser and Frank Matis reside
in Butler County and submitted mail ballots during
the 2024 Primary Election. Pet.App. 4a. Each failed
to enclose their ballot in a secrecy envelope before
mailing it to the Butler County Board of Elections.
Pet.App. 4a-5a. Both simply placed their ballots in the
mailing envelope. Pet.App. 4a-5a.
Upon receipt, the Board did not know that Genser
and Matis had failed to use secrecy envelopes because,
in accordance with the Election Code, the Board does
not open mailing envelopes until Election Day.
Pet.App. 5a. The Board nonetheless weighed the
mailing envelopes and reached a tentative
determination that Genser and Matis had not used
secrecy envelopes. Pet.App. 5a. The Board then
logged the receipt of the ballots in Pennsylvania’s
electronic election system—the Statewide Uniform
Registry of Electors, or “SURE”—and entered a code
indicating a preliminary determination that no
secrecy envelope was present. Pet.App. 5a-6a. SURE
sent Genser and Matis emails informing them that
their ballots might not be counted due to a missing
secrecy envelope. Pet.App. 6a-7a. If the Board had
subsequently opened the mailing envelopes and found
that secrecy envelopes were in fact present, it would
have counted the ballots.
Unwilling to wait for the Board’s final
determination on the validity of their mail ballots,
Genser and Matis cast provisional ballots during inperson voting on Election Day. Pet.App. 7a. The
8
Board, however, did not count their mail or provisional
ballots.
Pet.App. 6a-7a; see 25 Pa. Stat.
§ 3050(a.4)(5)(ii)(F). Their mail ballots turned out to
be invalid due to lack of secrecy envelopes, Pet.App.
6a, and the Commonwealth Court previously had held
that the Election Code prohibits counting provisional
ballots in this scenario, see In re Allegheny Cnty.
Provisional Ballots in the 2020 Gen. Election, 2020 WL
6867946, at *4-5 (Pa. Commw. Ct. Nov. 20, 2020)
(“[O]ur General Assembly, in clear and unmistakable
language, dictated that, in circumstances like this
case, the ‘provisional ballot[s] shall not be counted.’”
(quoting 25 Pa. Stat. § 3050(a.4)(5)(ii)).
D. Procedural History
After Genser and Matis learned that their
provisional ballots were not counted, they sued in the
Court of Common Pleas of Butler County,
Pennsylvania (“trial court”). They argued that the
Election Code obligated the Board to count their
provisional ballots. Pet.App. 7a. The Republican
Party Petitioners intervened to defend the Board’s
decision while the Pennsylvania Democratic Party
intervened to oppose it. Pet.App. 8a.
The trial court rejected Genser’s and Matis’s
arguments, holding that the Election Code
unambiguously prohibits individuals who submit mail
ballots that are “timely received” by county boards
from having provisional ballots counted. Pet.App. 10a.
The Commonwealth Court reversed in a divided
decision. That court declined to follow its prior ruling
in In re Allegheny County Provisional Ballots In The
2020 General Election. See 2020 WL 6867946 at *4-5.
Instead, it deemed the Election Code ambiguous and
9
reversed the trial court by relying on a substantive
canon protecting voters. Pet.App. 37a-38a (describing
that court’s decision).
The Pennsylvania Supreme Court affirmed on
different grounds in a 4–3 decision. Notably, the
majority’s rationale was never adopted by another
court nor offered by Respondents, and Petitioners
never had a chance to present argument on it.
The
majority
acknowledged
Section
3050(a.4)(5)(ii)(F)’s mandate that election officials
“shall not” count an individual’s provisional ballot if
they “timely received” a mail ballot from the person.
Pet.App. 38a. The majority, moreover, identified
nothing in the statutory text carving out any exception
to subsection (F)’s categorical “shall not be counted”
rule. See Pet.App. 38a.
The majority nonetheless read such an exception
into subsection (F), decreeing that election officials
shall count a provisional ballot if the voter’s mail
ballot was timely received but is invalid and cannot be
counted. Because the majority could cite no relevant
statutory text to support its exception, it sought
support elsewhere. It first pointed to its 2020 opinion
describing mail ballots without secrecy envelopes as
“void.” Pet.App. 39a-42a (quoting Pa. Democratic
Party, 238 A.3d at 375). It next invoked its preferred
dictionary definition of “void” to conclude that mail
ballots without secrecy envelopes have “no legal
effect.” Pet.App. 45a. It then equated “no legal effect”
with “nonexistent”: Because a “void” ballot has “no
legal effect,” Pet.App. 45a, the majority reasoned, “a
void ballot is not a ‘ballot’” at all under the Election
Code, Pet.App. 54a.
10
The majority never elaborated on what a “void
ballot” is if not a “ballot.” Pet.App. 54a. It also made
no attempt to square this conclusion with the Election
Code’s text, which refers to a mail ballot as a “ballot”
at every step of the mail-voting process, including
before the voter even casts it and after election officials
determine it is invalid and cannot be counted. See
Pet.App. 38a-46a, 54a; 25 Pa. Stat. §§ 3050; 3146.13146.8; 3150.11-3150.17. The majority also made no
attempt to square its conclusion with the very prior
decision from which it took the term “void”: That
decision described “void” mail ballots not as nonballots, but rather as “ballots” that are “disqualified”
and cannot be counted. Pet.App. 38a-46a, 54a; Pa.
Democratic Party, 238 A.3d at 380 (emphasis added).
Instead, resting on its conclusion that a “void ballot
is not a ballot,” the majority treated “void” mail ballots
as if they had never even existed. Pet.App. 45a, 54a.
Specifically, it found—despite the parties’ stipulation
to the contrary—that the Board never “timely
received” Respondents’ mail ballots without secrecy
envelopes. Pet.App. 42a, 48a. The majority thus held
that Section 3050(a.4)(5)(ii)(F) was inapplicable and
that the Board was required to count Respondents’
provisional ballots. Pet.App. 42a, 48a. And it
mandated the same outcome whenever a voter’s mail
ballot does not comply with other mandatory ballotcasting rules, such as the signature and date
requirements. See Pet.App. 42a & n.29.
The majority thus created a broad new right to
provisional voting precluded by the Election Code’s
unambiguous terms. The General Assembly has
limited provisional voting to certain narrow
situations, foreclosed it for voters who timely submit a
11
mail ballot, see, e.g., 25 Pa. Stat. § 3050, and
deliberately declined to permit a do-over for voters
who cast a mail ballot but fail to comply with the rules
for mail voting, see supra p. 6. The majority, however,
conferred a right to such a do-over: Under the
majority’s decision, voters who timely submit a mail
ballot but fail to comply with the General Assembly’s
mail-voting rules have a right to cast a provisional
ballot and have it counted. See Pet.App. 38a-46a.
Justice Brobson, joined by Justices Wecht and
Mundy, dissented. Those Justices explained that “the
Election Code is clear and unambiguous”: Because
Genser’s and Matis’s mail ballots were timely received
by the Board, Section 3050(a.4)(5)(ii)(F) “expressly
prohibit[s] the Board” from “count[ing] [their]
provisional ballots.” Pet.App. 70a, 95a (Brobson, J.,
dissenting); see also Pet.App. 97a n.18 (Brobson, J.,
dissenting) (explaining that, while the Code enforces
“a policy choice that the Majority views as absurd[,] …
providing one chance to cast a valid ballot, be it in
person or by mail (elector’s choice), is consistent with
this Commonwealth’s longstanding election policy and
statutory framework. Electors bear the responsibility
to follow the law.”).
The Justices also sharply criticized the majority’s
“untenable” reasoning and explained that it will
“rewrite the history of the election.” Pet.App. 86a, 92a
(Brobson, J., dissenting). First, they pointed out that
no relevant statutory provision uses the term “void”
and, thus, that the majority’s decision contravenes
“the statutory language itself.” Pet.App. 91a-92a
(Brobson, J., dissenting). Second, they explained that
the majority’s construction of the term “void”
contravenes the 2020 opinion it relied upon, which
12
treats a “void” ballot as a ballot that was timely
received but cannot be counted, not as a non-ballot.
Pet.App. 92a (Brobson, J., dissenting).
Third, they noted that even the majority’s selected
dictionary definition of “void” does not suggest the
ballot never legally existed. Pet.App. 92a (Brobson, J.,
dissenting) (“Not even the definition from Black’s Law
Dictionary of ‘void’ offered by the Majority ... supports
the Majority’s position that somehow the effect of the
ballot being void causes the ballot to essentially
‘disappear’ as if it never existed.”). As they explained,
“‘[v]oid’ does not and cannot reasonably mean that the
very same ballots that were excluded from the vote as
a result of the canvass were … never timely received.”
Pet.App. 92a (Brobson, J., dissenting) (emphasis
added).
Finally, they pointed out that the majority was
legislating from the bench: “[W]hat the Majority does
is ignore the words that the General Assembly
actually used in [subsection] (F), ignore how it used
those same or similar words in other parts of the
Election Code, and add words to [subsection] (F) that
the General Assembly used in other provisions that it
could have used, but chose not to use, in [subsection]
(F).” Pet.App. 94a (Brobson, J., dissenting). In doing
so, argued the dissenters, the majority assumed the
“liberty to make additions or modifications to the
unambiguous statutory language in order to effectuate
[its desired] result.” Pet.App. 96a-97a (Brobson, J.
dissenting).
Justice Mundy wrote separately to emphasize that
the majority’s interpretation was so unreasonable as
to violate the Elections and Electors Clauses. She
13
stressed that “the Majority has exceeded the bounds of
statutory interpretation and supplanted the power
vested in our General Assembly to regulate elections.”
Pet.App. 63a (Mundy, J., dissenting); see also Pet.App.
65a (Mundy, J., dissenting) (“The Majority’s analysis
is too far divorced from the legislature’s clear
directives regarding mail-in voting to withstand any
scrutiny …. [Its] holding usurps the legislature’s
unmistakable directives and supplants them with a
new procedure for counting provisional ballots after a
canvass has determined that the elector’s mail-in
ballot is disqualified.”).
For that reason, “the
Majority’s decision” is not just wrong; it “is an
unconstitutional intrusion upon the role reserved to
state legislatures by the Federal Constitution.”
Pet.App. 66a (Mundy, J., dissenting).
Two days after the Pennsylvania Supreme Court’s
decision, the Republican Party Petitioners asked that
court for a stay pending the disposition of a petition for
certiorari. The Pennsylvania Supreme Court denied
that request on October 28, 2024, over Justice Mundy’s
dissent.
The same day, the Republican Party Petitioners
filed an emergency stay application with this Court.
The Court denied that application on November 1,
2024. Justice Alito, joined by Justices Thomas and
Gorsuch, issued a statement recognizing that the case
presents “a matter of considerable importance” but
concurring in the denial because the Court “could not
prevent the consequences” identified in the stay
application for the then-imminent 2024 General
Election. Republican Nat’l Comm., 2024 WL 4647792,
at *1 (statement of Alito, J.).
14
REASONS FOR GRANTING THE WRIT
The Court should grant review of the “important
question[s] of federal law” presented in this petition,
which have divided lower courts. Sup. Ct. R. 10(b)-(c).
As every member of this Court has acknowledged, the
Constitution grants state legislatures a special role in
setting the rules for federal elections. See Moore, 600
U.S. at 34 (stating that “the Elections Clause
expressly vests power to carry out its provisions in ‘the
Legislature’ of each State, a deliberate choice that this
Court must respect”); Moore, 142 S. Ct. at 1090 (Alito,
J., joined by Thomas, J. and Gorsuch, J., dissenting
from the denial of application for stay) (explaining that
the Elections Clause “specifies a particular organ of a
state government” to set federal election rules—“the
Legislature”—“and we must take that language
seriously”).
Yet in its decision below, the
Pennsylvania Supreme Court decreed that election
officials shall count ballots that the Pennsylvania
General Assembly unambiguously directed shall not
be counted. Thus, just like in the 2020 presidential
election, “[t]he Supreme Court of Pennsylvania …
issued a decree that squarely alters an important
statutory provision enacted by the Pennsylvania
Legislature pursuant to its authority under the
Constitution of the United States to make rules
governing the conduct of elections for federal office.”
Republican Party of Pa. v. Boockvar, 141 S. Ct. 1, 1
(2020) (statement of Alito, J.). As a result, Petitioners
were forced—and, absent this Court’s intervention,
must continue—to run campaigns and conduct
elections under rules set by the Pennsylvania
Supreme Court rather than the General Assembly.
15
That judicial “intru[sion] upon the role specifically
reserved to state legislatures by … the Federal
Constitution” cries out for this Court’s review. Moore,
600 U.S. at 37. By granting review, the Court could
resolve a split of authority and answer the question
left open in Moore: What standard of review governs
claims under the Elections and Electors Clauses? See
id. at 39 (Kavanaugh, J., concurring) (noting Court
declined to “adopt any specific standard for our review
of a state court’s interpretation of state law in a case
implicating the Elections Clause”).
That question is important and recurring. In recent
elections, this Court has received a “high number of
petitions and emergency applications” raising claims
under the Elections and Electors Clauses.
Degraffenreid, 141 S. Ct. at 732 (Thomas, J.,
dissenting from the denial of certiorari). And future
elections are bound to bring more of the same. See
Moore, 142 S. Ct. at 1089 (Kavanaugh, J., concurring
in denial of application for stay) (“The issue is almost
certain to keep arising until the Court definitively
resolves it.”). Clarifying the standard of review now—
in a non-emergency posture, without the pressure of
an imminent election—“would provide invaluable
guidance for future elections.” Degraffenreid, 141 S.
Ct. at 739 (Alito, J., dissenting from the denial of
certiorari). That guidance could also stem the tide of
these emergency requests and relieve the Court of the
now-common demand for it to intervene in national
elections on an expedited basis and in a manner that
could affect electoral outcomes.
16
I.
THE PENNSYLVANIA SUPREME COURT
VIOLATED THE U.S. CONSTITUTION.
Because federal offices “arise from the Constitution
itself,” any “state authority to regulate election to
those offices … had to be delegated to, rather than
reserved by, the States.” Cook v. Gralike, 531 U.S.
510, 522 (2001) (cleaned up); Bush v. Palm Beach
Cnty. Canvassing Bd., 531 U.S. 70, 76 (2000) (per
curiam) (explaining that as “to the selection of
Presidential electors, the legislature is not acting
solely under the authority given to it by the people of
the State, but by virtue of a direct grant of authority
under [the Federal] Constitution”). The Constitution
effected such delegations to state legislatures through
the Elections and Electors Clauses. See U.S. Const.
art. I, § 4, cl. 1; id. art. II, § 1, cl. 2.
The Elections Clause directs that “[t]he Times,
Places and Manner of holding Elections for Senators
and Representatives, shall be prescribed in each State
by the Legislature thereof,” subject to the directives of
Congress. U.S. Const. art. I, § 4, cl. 1 (emphasis
added). The Elections Clause thereby vests state
legislatures, subject to congressional enactments, with
authority “to provide a complete code for congressional
elections.” Smiley v. Holm, 285 U.S. 355, 366 (1932);
see also Ariz. State Legislature v. Ariz. Indep.
Redistricting Comm’n, 576 U.S. 787, 826 (2015)
(Roberts, C.J., dissenting) (noting that the Elections
Clause “imposes a duty on States and assigns that
duty to a particular state actor”); Wise v. Circosta,
2020 WL 6156302, at *9 (4th Cir. Oct. 20, 2020)
(Wilkinson & Agee, JJ., dissenting) (the “Constitution
does not assign these powers holistically to the state
governments but rather pinpoints a particular branch
17
of state government”). This “broad power to prescribe
the procedural mechanisms for holding congressional
elections,” Cook, 531 U.S. at 523 (cleaned up), includes
authority to enact “the numerous requirements as to
the procedure and safeguards which experience shows
are necessary in order to enforce the fundamental
right involved,” Smiley, 285 U.S. at 366; Cook, 531
U.S. at 523-24; see also Storer v. Brown, 415 U.S. 724,
730 (1974) (state legislatures may enact election laws
in order to ensure that elections are “fair and honest”
and that “some sort of order, rather than chaos, is to
accompany the democratic processes”).
The Electors Clause directs that “[e]ach State shall
appoint, in such Manner as the Legislature thereof
may direct,” electors for President and Vice President.
U.S. Const. art. II, § 1, cl. 2 (emphasis added). The
Electors Clause thus “leaves it to [state] legislature[s]
exclusively to define the method of” selecting
Presidential electors. McPherson v. Blacker, 146 U.S.
1, 27 (1892); Palm Beach Cnty. Canvassing Bd., 531
U.S. at 76-77; Bush v. Gore, 531 U.S. 98, 112-13 (2000)
(Rehnquist, C.J., concurring).
These sweeping grants of authority to state
legislatures mean that “the text of [state] election law
itself, and not just its interpretation by the courts of
the States, takes on independent significance.” Bush,
531 U.S. at 112-13 (Rehnquist, C.J., concurring). Said
another way, “state courts do not have free rein” in
interpreting state election laws because the Federal
Constitution “expressly vests power” to set election
rules “in the Legislature of each State.” Moore, 600
U.S. at 34 (cleaned up). “As in other areas where the
exercise of federal authority or the vindication of
federal rights implicates questions of state law”—such
18
as cases involving the Takings and Contracts
Clauses—the Court “ha[s] an obligation to ensure that
state court interpretations of that law do not evade
federal law.” Id. Accordingly, any deference owed to
state-court interpretations of state law must be
“tempered” by the Court’s “duty to safeguard limits
imposed by the Federal Constitution.” Id. at 35.
The Court thus reached an inescapable conclusion
in Moore: “[S]tate courts may not transgress the
ordinary bounds of judicial review such that they
arrogate to themselves the power vested in state
legislatures to regulate federal elections.” Id. at 36.
But the Court declined to adopt “a more specific
standard” to guide “review of state court decisions in
federal election cases.” Id. at 40 (Kavanaugh, J.,
concurring). That was due, at least in part, to the
petitioners there “disclaim[ing] any argument that the
North Carolina Supreme Court misinterpreted the
North Carolina Constitution or other state law.” Id. at
39 (Kavanaugh, J., concurring); id. at 36 (maj. op.)
(observing that the petitioners failed to preserve the
issue). Because this case does not present similar
hurdles—and because “[t]he issue is almost certain to
keep arising until the Court definitively resolves it,”
Moore, 142 S. Ct. at 1089 (Kavanaugh, J., concurring
in denial of application for stay)—the Court “should”
take this opportunity to clarify the appropriate
standard of review, Moore, 600 U.S. at 40 (Kavanaugh,
J., concurring).
19
A. A State Court Exceeds the Bounds of
Ordinary Judicial Review When It
Distorts State Law Beyond What a Fair
Reading Requires.
1. Before Moore, the Court had last addressed
federal-court review of state-court decisions in election
cases in Bush, 531 U.S. 98. See Moore, 600 U.S. at 35.
In his concurrence, Chief Justice Rehnquist—joined
by Justices Scalia and Thomas—proposed a simple
test: whether the state court “impermissibly distorted”
state law “beyond what a fair reading required.” Bush,
531 U.S. at 115 (Rehnquist, C.J., concurring). Justice
Souter, in dissent, offered a similar but arguably more
deferential standard: whether the state court’s
decision “transcends the limits of reasonable statutory
interpretation.” Id. at 133 (Souter, J., dissenting).
These “standards convey essentially the same point:
Federal court review” in this area “should be
deferential, but deference is not abdication.” Moore,
600 U.S. at 39 (Kavanaugh, J., concurring). Because
Chief Justice Rehnquist’s “straightforward standard
… best sums it up,” id. (Kavanaugh, J., concurring)
(cleaned up), the Court should adopt that standard
and hold that a state court exceeds the bounds of
ordinary judicial review when it “impermissibly
distort[s]” state law “beyond what a fair reading
require[s],” Bush, 531 U.S. at 115 (Rehnquist, C.J.,
concurring).
2. To see how that standard might apply in practice,
consider the Court’s decision in Palm Beach County
Canvassing Board, 531 U.S. 70. There, this Court
vacated a Florida Supreme Court decision that
restricted the Florida secretary of state’s authority to
20
reject the results of recounts submitted after the
statutory deadline. Id. at 75-76, 78. The Florida
Supreme Court’s rationale was difficult to decipher,
but appeared to be based “in part upon the right to
vote set forth in the Declaration of Rights of the
Florida Constitution.” Id. at 75.
The Court expressed concern that “the Florida
Supreme Court saw the Florida Constitution as
circumscribing the legislature’s authority under [the
Electors Clause].” Id. at 78. Consequently, the Court
feared that the Florida Supreme Court might have
“construed the Florida Election Code” in light of its
construction of the state constitution, “without regard
to the extent to which the Florida Constitution could,
consistent with [the Electors Clause], ‘circumscribe
the legislative power.’” Id. at 77 (emphasis added).
The Court accordingly vacated and remanded so that
the Florida Supreme Court could clarify whether the
state constitution had influenced its decision. Id. at
78.
Palm Beach County Canvassing Board provides at
least two important insights. First, this Court will not
blindly defer to a state court’s bottom-line
interpretation of state laws governing federal
elections. Instead, it will sift through the state court’s
analysis to probe the court’s reasoning. See Moore, 600
U.S. at 39 (Kavanaugh, J., concurring) (“deference is
not abdication”).
Second, a state court risks
“impermissibly distort[ing]” state law “beyond what a
fair reading require[s]” when it invokes extrinsic
sources (such as the vague state constitutional
provision in Palm Beach County Canvassing Board) to
justify departure from the legislature’s unambiguous
statutory text. Bush, 531 U.S. at 115 (Rehnquist, C.J.,
21
concurring); see also Degraffenreid, 141 S. Ct. at 733
(Thomas, J., dissenting from the denial of certiorari)
(stating that the Pennsylvania Supreme Court may
have “overrid[den] the clearly expressed intent of the
legislature” by relying on a “vague clause in the State
Constitution” (cleaned up)); id. at 739 (Alito, J.,
dissenting from the denial of certiorari) (stating that
the Pennsylvania Supreme Court invoked a vague
constitutional provision to “override even very specific
and unambiguous rules adopted by the legislature for
the conduct of federal elections”).
The upshot is this: When reviewing state-court
decisions in this context, the Court should scrutinize
the state court’s reasoning and apply the familiar rule
that “the authoritative statement is the” unambiguous
“statutory text, not … extrinsic material.” Exxon
Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546,
568 (2005). As in all cases, “the clearly expressed
intent of the legislature must prevail.” Bush, 531 U.S.
at 120 (Rehnquist, C.J., concurring). And that is
especially true here: Because the Elections and
Electors Clauses grant federal authority to state
legislatures, “the text of the election law itself, and not
just its interpretation by the courts of the States, takes
on independent significance.” Id. at 113 (Rehnquist,
C.J., concurring). When a state court, without clear
justification, uses an extrinsic source to break from the
unambiguous text of an election statute, that court
“impermissibly distort[s]” state law “beyond what a
fair reading require[s],” id. at 115 (Rehnquist, C.J.,
concurring), and thus “exceed[s] the bounds of
ordinary judicial review” in violation of the U.S.
Constitution, Moore, 600 U.S. at 37 (maj. op.).
22
B. The Pennsylvania Supreme Court’s
Decision Exceeded the Bounds of
Ordinary Judicial Review.
The Pennsylvania Supreme Court “impermissibly
distorted” the Election Code “beyond what a fair
reading required,” Bush, 531 U.S. at 115 (Rehnquist,
C.J., concurring), when it decreed that election
officials shall count provisional ballots that the
General Assembly has directed they shall not count.
By so obviously “exceed[ing] the bounds of ordinary
judicial review,” the Pennsylvania Supreme Court
violated the Elections and Electors Clauses. Moore,
600 U.S. at 37.
1. The General Assembly could not have been
clearer: “A provisional ballot shall not be counted if …
the elector’s [mail] ballot is timely received by a county
board of elections.” 25 Pa. Stat. § 3050(a.4)(5)(ii)(F)
(emphasis added). Accordingly, a county board must
not count any provisional ballot cast by a voter whose
mail ballot was “timely received” before the deadline
of 8:00 p.m. on Election Day. Id.; 25 Pa. Stat.
§ 3150.16(c).
That should have been the end of this case. See
Moore, 600 U.S. at 37; Bush, 531 U.S. at 113-15
(Rehnquist, C.J., concurring); Exxon Mobil Corp., 545
U.S. at 568; In re Canvass of Absentee Ballots of Nov.
4, 2003 General Election, 843 A.2d 1223, 1231 (Pa.
2004) (Pennsylvania’s courts cannot “ignore the clear
mandates of the Election Code.”). It is undisputed that
the Board timely received Respondents’ mail ballots by
the deadline of 8:00 p.m. on Election Day.
Respondents therefore did not qualify for one of the
narrow circumstances in which the General Assembly
23
has granted a right to provisional voting and, thus,
their provisional ballots “shall not be counted.” 25 Pa.
Stat. § 3050(a.4)(5)(ii)(F).
If more were somehow needed, two other provisions
of the Election Code confirm that such ballots cannot
be counted. First, every voter who casts a provisional
ballot must first sign an affidavit that states:
I do solemnly swear or affirm that my
name is ____________, that my date of
birth is ____________, and at the time
that I registered I resided at
____________ in the municipality of
____________ in ____________ County of
the Commonwealth of Pennsylvania and
that this is the only ballot that I cast in
this election.
Id. § 3050(a.4)(2) (emphasis added). Thus, every voter
who seeks to cast a provisional ballot after submitting
a defective mail ballot and signs this affidavit makes
a false statement. Every such voter is attempting to
vote provisionally because they did cast another
(defective) ballot in the election, not because they did
not cast another ballot. See id.
Second, the provision governing the canvassing of
provisional ballots states that such ballots cannot be
counted unless a county board of elections “confirms
that the individual did not cast any other ballot,
including [a mail] ballot, in the election.”
Id.
§ 3050(a.4)(5)(i). But an individual who submits a
defective mail ballot has “cast” a ballot, just like a
fisherman may “cast” his line into the water without
catching a fish. Cast, American Heritage Dictionary
(2022) (“To deposit or indicate (a ballot or vote).”
24
(emphasis added)). Indeed, the Election Code makes
clear that “casting” a ballot is an action undertaken by
the voter before election officials make any
determination regarding the ballot’s validity. See, e.g.,
25 Pa. Stat. § 3050(a.4)(5)(i)-(ii) (directing county
boards to determine a provisional ballot’s validity after
the ballot has been “cast”); id. § 3146.8(g)(1)(i)-(ii)
(directing county boards to determine the validity of a
mail ballot “cast by any absentee elector” during the
canvass after Election Day); see also Pa. Democratic
Party, 238 A.3d at 375 (“[T]he Act directs that mail-in
ballots cast by electors who died prior to Election Day
shall be rejected and not counted.” (emphasis added)).
Individuals whose mail ballots have been timely
received by the county board have cast those ballots
and, thus, any provisional ballots they cast cannot be
counted.
2. The Pennsylvania Supreme Court’s decree that
election officials shall count provisional ballots that
the General Assembly has directed they shall not
count—and its concomitant creation of a new right to
provisional voting at odds with the Election Code—far
“exceed the bounds of ordinary judicial review.” Moore,
600 U.S. at 37. The majority’s decision not only
“impermissibly distort[s]” the Election Code “beyond
what a fair reading require[s],” id. at 38 (Kavanaugh,
J., concurring) (cleaned up); it is simply irreconcilable
with the plain statutory text. That alone is enough to
show the majority’s violation of the Elections and
Electors Clauses. See id. at 36-37 (maj. op.); see also
Bush, 531 U.S. at 113-15 (Rehnquist, C.J., concurring).
And there is more—a lot more. The majority opinion
acknowledged (as it must) the legislative command
that provisional ballots “shall not be counted” when an
25
elector’s mail ballot is “timely received.” Pet.App. 38a
(citing 25 Pa. Stat. § 3050(a.4)(5)(ii)(F)).
The
majority’s rationale (which was not embraced by the
lower courts or offered by any party) for ignoring that
unambiguous language was, to put it generously,
imaginative. It reasoned that mail ballots cast
without the mandatory secrecy envelopes are “void”;
that “void” ballots have no legal effect; and that such
ballots therefore never existed at all and thus could
not be “received” by election officials. Pet.App. 45a48a. Following this reasoning, the majority concluded
that, despite the parties’ stipulation that the Board
timely received the mail ballots cast by Genser and
Matis, those ballots had not, in fact, been “timely
received” under Section 3050(a.4)(5)(ii)(F). Pet.App.
45a.
Each step in the majority’s bizarre and error-filled
syllogism fails. To start, the majority never explained
what a “void ballot” is if it is not a “ballot.” Apparently,
the majority instead thought it could make “void” mail
ballots disappear at the wave of its hand. See Pet.App.
91a-93a (Brobson, J., dissenting).
More to the point, the relevant provisions of the
Election Code never use the word “void.” The majority
thus had to turn to an extrinsic source to find that
word—a textbook way of violating the Elections and
Electors Clauses.
See, e.g., Palm Beach Cnty.
Canvassing Bd., 531 U.S. at 75-78; Bush, 531 U.S. at
115 (Rehnquist, C.J., concurring); Degraffenreid, 141
S. Ct. at 733 (Thomas, J., dissenting from the denial of
certiorari); id. at 739 (Alito, J., dissenting from the
denial of certiorari); see also Exxon Mobil Corp., 545
U.S. at 568.
26
To add insult to injury, the extrinsic source relied on
by the majority was not a state constitutional
provision adopted by the people of Pennsylvania. The
majority instead merely plucked the word “void” from
its own prior judicial decision. Pet.App. 40a (quoting
Pa. Democratic Party, 238 A.3d at 375). Yet, as this
Court has explained, “the language of an opinion”
should not “be parsed as though” it were the “language
of a statute.” CBS, Inc. v. FCC, 453 U.S. 367, 385
(1981); see Kanter v. Barr, 919 F.3d 437, 454 (7th Cir.
2019) (Barrett, J., dissenting) (“[J]udicial opinions are
not statutes, and we don’t dissect them word-by-word
as if they were.”).
And the majority even adopted a definition of the
term “void” at odds with the way the word was used in
the prior opinion.
The majority’s cherry-picked
definition of “void” means “that something has ‘no
legal effect.’” Pet.App. 45a (quoting Void, Black’s Law
Dictionary (12th ed. 2024)). But in Pennsylvania
Democratic Party, the court had equated the word with
“disqualified,” not nonexistent. 238 A.3d at 380;
Pet.App. 91a (Brobson, J., dissenting). And indeed,
other dictionary definitions of the word “void” suggest
something that is “void” is merely “not valid.” E.g.,
Void, American Heritage Dictionary (2022) (“To make
void or of no validity; invalidate.”). The majority
ignored those definitions in favor of the one definition
that would, in its mind, enable the next step in its
chain of illogic.
And that next step is the most bizarre. The majority
reasoned that treating a “void” mail ballot as “timely
received” under subsection (F)—even without counting
it—would nonetheless “give it legal effect.” Pet.App.
46a. Of course, the majority could not tolerate that
27
result because it would have conflicted with the
majority’s preferred definition of the (non-statutory)
term “void.” Thus, according to the majority, mail
ballots that were “timely received” by election officials
were not, in fact, “timely received” if they turn out to
violate the General Assembly’s ballot-casting rules.
Pet.App. 45a. As the dissent explained, that reasoning
would mean that a “ballot” ceases to be a “ballot,” and
thus cannot be “received,” even if election officials later
(and only after receiving the ballot) discover an error
that renders the ballot ineligible for counting. Pet.App.
92a (Brobson, J., dissenting). Under the majority’s
reasoning, such a ballot simply “disappear[s]” as if it
never existed in the first place. Pet.App. 92a (Brobson,
J., dissenting).
That makes no sense. A ballot does not cease to be
a ballot—and an item “received” does not disappear
from a county board’s possession—merely because the
ballot is ultimately deemed ineligible for counting.
This Court has recognized that reality by repeatedly
describing rejected ballots as nothing other than
“ballots.” See, e.g., Brnovich v. Democratic Nat’l
Comm., 594 U.S. 647, 682 n.18 (2021) (referring to
“discarded ballots” rejected by Arizona); id. at 719
(Kagan, J., dissenting) (same); Roudebush v. Hartke,
405 U.S. 15, 23 (1972).
The Pennsylvania Election Code is in accord,
referring to an invalid mail ballot that “shall not be
counted” as a “ballot,” not something else. 25 Pa. Stat.
§ 3146.8(h)(3) (a mail “ballot” that is not supported by
requisite proof of identification “shall not be counted”).
Indeed, the Election Code refers to a mail ballot as a
“ballot” at each step of the voting process: when it is
approved, printed, and sent to the individual who
28
requested it; when the individual attempts to complete
it and returns it to election officials; and when election
officials canvass it and decide whether it is valid or
invalid and must or must not be counted. See id.
§§ 3050; 3146.1-3146.8; 3150.11-3150.17. Following
the Election Code’s lead, the Pennsylvania Supreme
Court has also previously referred to invalid mail
ballots as “ballots,” not as non-ballots—including in
the very 2020 decision it purported to invoke here. See,
e.g., Pa. Democratic Party, 238 A.3d at 380 (“mail[]
ballot that is not enclosed in the statutorily-mandated
secrecy envelope must be disqualified” because “the
ballot [is] invalid” (emphasis added)). Thus, no matter
where one looks, a mail ballot is a “ballot,” regardless
of whether it is ultimately deemed invalid or counted.
25 Pa. Stat. § 3050(a.4)(5)(ii)(F).
The majority’s decision thus not only runs
roughshod over the Election Code; it is also
nonsensical. It is difficult to imagine a more blatant
judicial “arrogat[ion]” of “the power vested in state
legislatures to regulate federal elections.” Moore, 600
U.S. at 36. The majority cast aside the General
Assembly’s unambiguous statutory text, decreed that
election officials shall count ballots the General
Assembly has directed they shall not count, and
created a new right to provisional voting based solely
on its reinterpretation of a stray word in its own prior
judicial opinion. If state courts can so easily dispose of
unambiguous state election laws under the guise of
“judicial review,” id., then the Elections and Electors
Clauses are a pointless formality that state courts can
simply ignore.
29
II. THIS PETITION RAISES IMPORTANT AND
RECURRING
QUESTIONS
THAT
IMPLICATE A SPLIT OF AUTHORITY.
This case is both legally and factually important. At
least four Justices have recognized that the question
of what standard of review applies under the Elections
and Electors Clauses is “exceptionally important and
recurring.” Moore, 142 S. Ct. at 1089 (Alito, J.,
dissenting from denial of application for stay); id.
(Kavanaugh, J., concurring in denial of application for
stay) (agreeing that the question “is important” and “is
almost certain to keep arising until the Court
definitively resolves it”); Republican Nat’l Comm.,
2024 WL 4647792, at *1 (statement of Alito, J.) (“The
application of the
State Supreme
Court’s
interpretation in the upcoming election is a matter of
considerable importance ….”).
The volume of cases received by the Court
presenting this question reinforces the urgency of
answering it. In recent years, the Court has received
“an unusually high number of petitions and
emergency applications contesting” changes to state
election laws by state courts. Degraffenreid, 141 S. Ct.
at 732 (Thomas, J., dissenting from the denial of
certiorari); see, e.g., Emergency Application for Stay,
Scarnati v. Pennsylvania Democratic Party, No.
20-542 (Sept. 28, 2020); Pet. for Cert., Republican
Party of Pennsylvania v. Degraffenreid, No. 20-542
(Oct. 23, 2020); Pet. for Cert., Donald J. Trump for
President, Inc. v. Boockvar, No. 20-845 (Dec. 21, 2020);
Emergency Application for Stay, Moore v. Harper, No.
21A455 (Feb. 25, 2022); Pet. for Cert., Huffman v.
Neiman, No. 22-362 (Oct. 14, 2022). That includes
petitions pending this term. See Jacobsen v. Mont.
30
Democratic Party, No. 24-220 (Aug. 26, 2024). The
issue was even litigated in merits briefing last term,
though the Court decided the case on other grounds.
See Br. of Petitioner at 46, Trump v. Anderson, No. 23719 (Jan. 18, 2024). And still more emergency
requests have arisen from changes to state election
rules by other nonlegislative officials. See, e.g.,
Emergency Application for Writ of Injunction, Wise v.
Circosta, No. 20A71 (Oct. 22, 2020); Emergency
Application for Injunction Pending Appeal, Moore v.
Circosta, No. 20A72 (Oct. 22, 2020).
This case also implicates a split of authority
between the federal appellate and state supreme
courts over the extent to which nonlegislative officials
may alter election rules enacted by state legislatures.
Compare, e.g., Carson, 978 F.3d at 1059 (holding that
“the Secretary’s actions in altering the deadline for
mail-in ballots likely violates the Electors Clause of
Article II, Section 1 of the United States
Constitution”), with Pa. Democratic Party, 238 A.3d at
371 (extending the statutory receipt deadline for mail
ballots); Degraffenreid, 141 S. Ct. at 734 (Thomas, J.,
dissenting
from
the
denial
of
certiorari)
(acknowledging the “divide”).
Standard of review aside, this case is also
important to the future of elections in Pennsylvania.
Whether voters who submit defective mail ballots get
a do-over by voting provisionally could affect tens of
thousands of ballots every time Pennsylvania holds
elections—and place a corresponding additional
burden on county election officials to process those
voters in person on Election Day and canvass and
count provisional ballots thereafter. In 2020, under
the General Assembly’s plain directive, about 1% of
31
returned mail ballots were not counted because of
missing secrecy envelopes. See Daniel J. Hopkins et
al., How Many Naked Ballots Were Cast in
Pennsylvania’s 2020 General Election?, MIT Election
Data
+
Science
Lab
(Aug.
26,
2021),
https://tinyurl.com/3awed4jv.
Rejection rates for
missing signatures and dates have varied in recent
elections, but each type of error could disqualify over
10,000 ballots in a given election. See, e.g., Black
Political Empowerment Project v. Schmidt, 2024 WL
4002321, at *6 (Pa. Commw. Ct. Aug. 30, 2024) (noting
that over 10,000 mail ballots were rejected in the 2022
General Election for missing dates), vacated by 322
A.3d 221 (Pa. 2024). Thus, it is unsurprising that, in
recent years, several election results have flipped only
because invalid mail ballots were unlawfully counted.
See, e.g., Degraffenreid, 141 S. Ct. at 734-35 (Thomas,
J., dissenting from the denial of certiorari); In re
Canvass of Absentee and Mail-in Ballots, 241 A.3d
1058; Migliori v. Cohen, 36 F.4th 153 (3d Cir. 2022),
cert. granted and judgment vacated, Ritter v. Migliori,
143 S. Ct. 297 (2022); Pet.App. 218a-220a. Because
Pennsylvania is one of the Nation’s most important
swing states, the provisional ballots implicated by this
case could easily swing important federal elections in
the future.
More still, Pennsylvania’s courts have repeatedly
made clear that they will creatively stretch the
General Assembly’s commands to reach their
preferred outcomes. During the 2020 election, as
Justice Thomas noted, this Court was presented with
“no fewer than four other decisions of the
Pennsylvania Supreme Court implicat[ing] the same
issue” of revising the Election Code by judicial fiat.
32
See Degraffenreid, 141 S. Ct. at 737 (Thomas, J.,
dissenting from the denial of certiorari). Justice
Thomas even predicted that “there is a reasonable
expectation that these petitioners,” including the
Pennsylvania Republican Party, “will again confront
nonlegislative officials altering election rules.” Id.
(Thomas, J., dissenting from the denial of certiorari).
That prediction proved prescient.
With this
petition, the Pennsylvania Republican Party is once
again before the Court asking it to enforce the
Elections and Electors Clauses against
a
Pennsylvania Supreme Court bent on rewriting the
General Assembly’s election laws. If this Court does
not intervene now, the pattern of state judicial
interference in federal elections will likely only
continue. See id. This Court should grant the petition
and make clear that the rules for federal elections in
Pennsylvania—and the Nation—will be determined
by the people’s elected representatives, not judges.
See, e.g., Democratic Nat’l Comm. v. Wis. State
Legislature, 141 S. Ct. 28, 29 (2020) (Gorsuch, J.,
concurring in denial of application to vacate stay).
III. THIS CASE IS AN IDEAL AND CLEAN
VEHICLE
FOR
RESOLVING
THESE
EXCEPTIONALLY
IMPORTANT
AND
RECURRING QUESTIONS.
For at least three reasons, this case is an ideal and
clean vehicle for answering the questions presented.
First, the Court can resolve them without the added
pressure of an impending election. “[T]he judicial
system is not well suited to address these kinds of
questions in the short time period available
immediately [before or] after an election[.]”
33
Degraffenreid, 141 S. Ct. at 737 (Thomas, J.,
dissenting from the denial of certiorari). This case,
however, comes to the Court “outside that truncated
context,” id., so “the Court can carefully consider and
decide the issue … after full briefing and oral
argument.” Moore, 142 S. Ct. at 1089 (Kavanaugh, J.,
concurring in denial of application for stay). And in
doing so, the Court can “provide clear rules for future
elections.” Degraffenreid, 141 S. Ct. at 738 (Thomas,
J., dissenting from the denial of certiorari); see also id.
at 739 (Alito, J., dissenting from the denial of
certiorari) (“[A] decision would provide invaluable
guidance for future elections.”).
Second, this case features a straightforward
question of statutory interpretation, not the “far more
uncertain” task of reviewing a state-court
interpretation of a state constitution. Moore, 600 U.S.
at 64 (Thomas, J., dissenting); Democratic Nat’l
Comm., 141 S. Ct. at 28 (Roberts, C.J., concurring in
denial of application to vacate stay) (recognizing that
review of state-court rulings under state constitutions
presents difficult questions under Elections and
Electors Clauses).
Finally, there are no vehicle problems that would
prevent the Court from answering the questions
presented.
The Republican Party Petitioners
preserved the Elections and Electors Clauses issue by
raising it in their petition for allowance, Pet.App.
176a-177a, 191a n.5, and in their merits briefing,
Pet.App. 164a. Indeed, both Justice Dougherty’s
concurrence
and
Justice
Mundy’s
dissent
acknowledged and analyzed these arguments,
Pet.App. 60a, 63a-66a, and Justice Mundy specifically
34
observed that the Republican Party Petitioners
preserved the issue, Pet.App. 66a nn.4-5. And because
the Pennsylvania Supreme Court’s rationale was
neither adopted by another court nor offered by
Respondents, Petitioners cannot be faulted for failing
to divine that the court would engage in such an
irrational, text-defying analysis—and for then failing
to preemptively rebut it.
Moreover, there are no jurisdictional barriers to the
Court’s review. The Board clearly has standing to
appeal an adverse judgment against it. See ASARCO
Inc. v. Kadish, 490 U.S. 605, 618 (1989). After all, this
Court previously found standing where “[t]he state
proceedings ended in a … judgment adverse to [the]
petitioners, an adjudication of legal rights which
constitutes the kind of injury cognizable in this Court
on review from the state courts.” Id.
The decision below also places an additional burden
on Butler County election officials. It requires them to
make provisional voting available to—and canvass
and count provisional ballots cast by—voters whom
the General Assembly has granted no right to
provisional voting. And if the decision is permitted to
stand, the number of voters who show up on Election
Day and cast a provisional ballot is likely to grow
exponentially, as voters who cast a timely mail ballot
will also cast a provisional ballot as a backstop against
any failure to comply with the mail-voting rules.
More still, the Republican Party Petitioners will
continue to participate in many elections in Butler
County, and the judgment below will force them to do
so in an unlawfully structured competitive
environment. See Pet.App. 217a-220a (declaration
35
describing injuries); accord Mecinas v. Hobbs, 30 F.4th
890, 898 & n.3 (9th Cir. 2022) (political party’s
“interest in fair competition” injured when forced “to
participate in an illegally structured competitive
environment” (cleaned up)). Indeed, because the
Pennsylvania Supreme Court’s interpretation of the
Election Code is binding statewide, see 2020 Gen.
Election, 241 A.3d at 1078 n.6 (explaining that the
Pennsylvania Supreme Court has “authority to
definitively interpret … the Election Code”), the
decision below will force the Republican Party
Petitioners to compete under an illegally altered
competitive environment across Pennsylvania, cf.
Camreta v. Greene, 563 U.S. 692, 702-03 (2011)
(finding standing to appeal “because the judgment
may have prospective effect on the parties”).
***
When the legislature says that certain ballots shall
not be counted, the Elections and Electors Clauses
prohibit state courts from blue-penciling that clear
command into shall be. But that’s precisely what the
Pennsylvania Supreme Court did here. As a result,
the 2024 federal elections in Pennsylvania were
conducted under rules set by a state court rather than
the state legislature, in direct defiance of the Federal
Constitution. And without this Court’s intervention,
future elections will be too. If the Court will not
intervene in a case with facts as egregious as these,
state courts across the country will receive a clear
message that the Court did not really mean what it
said in Moore—and that judicial review under the
Elections and Electors Clause is nothing more than a
parchment promise.
36
CONCLUSION
The petition for a writ of certiorari should be
granted.
37
January 21, 2025
Respectfully submitted,
JULIE M. GRAHAM
BUTLER COUNTY
SOLICITOR’S OFFICE
124 W. Diamond St.
Butler, PA 16001
(724) 284-5233
JOHN M. GORE
Counsel of Record
E. STEWART CROSLAND
LOUIS J. CAPOZZI III
RILEY W. WALTERS
JONES DAY
51 Louisiana Ave., NW
Washington, DC 20001
(202) 879-3939
jmgore@jonesday.com
Counsel for Petitioner
Butler County Board of
Elections
KATHLEEN GALLAGHER
THE GALLAGHER
FIRM, LLC
436 Seventh Ave., 13th
Floor
Pittsburgh, PA 15219
(412) 308-5512
THOMAS W. KING, III
THOMAS E. BRETH
DILLON, MCCANDLESS,
KING, COULTER &
GRAHAM, LLP
128 W. Cunningham St.
Butler, PA 16001
(724) 283-2200
Counsel for Republican
Party Petitioners
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