Amicus Curiae Brief — Republican National Committee, et al., Applicants v. Faith Genser, et al.

No. 24A408

IN THE SUPREME COURT OF THE UNITED STATES

_____________________________________________________________________________

FAITH GENSER, ET AL.,

Plaintiffs-Respondents,

v.

BUTLER COUNTY BOARD OF ELECTIONS, ET AL.,

Defendants-Respondents,

and

REPUBLICAN NATIONAL COMMITTEE, ET AL.,

Intervenor-Applicants.

______________________________________________________________________________

Application from the Supreme Court of Pennsylvania

(No. 26 WAP 2024, No. 27 WAP 2024)

AMICI CURIAE BRIEF OF PENNSYLVANIA COUNTY OFFICIALS IN

OPPOSITION TO EMERGENCY APPLICATION

Joseph J. Khan

CURTIN & HEEFNER LLP

2005 S. Easton Road, Suite 100

Doylestown, PA 18901

Jonathan B. Miller

Shannon Eddy

PUBLIC RIGHTS PROJECT

490 43rd Street, Unit #115

Oakland, CA 94609

Phone: (510) 738-6788

jon@publicrightsproject.org

Counsel for Amici Curiae

TABLE OF CONTENTS

STATEMENT OF INTEREST ....................................................... 1

SUMMARY OF ARGUMENT........................................................ 2

ARGUMENT .................................................................................. 3

I.

THE PENNSYLVANIA SUPREME COURT’S

DECISION AFFIRMS EXISTING PRACTICE OF

MANY

COUNTIES,

REQUIRES

MINOR

ADJUSTMENTS FOR OTHERS, AND ALIGNS

WITH EXISTING STATEWIDE GUIDANCE ..................... 3

II.

THE PURCELL PRINCIPLE COUNSELS

AGAINST THIS COURT’S INTERVENTION AT

THIS LATE STAGE ............................................................... 7

CONCLUSION ............................................................................. 11

APPENDIX A—List of Amici Curiae .......................................... 12

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TABLE OF AUTHORITIES

CASES

Democratic Nat’l Comm. v. Wisconsin State Legislature,

141 S. Ct. 28 (2020) .................................................................... 9

Moore v. Harper,

600 U.S. 1 (2023) ...............................................................passim

Purcell v. Gonzalez,

549 U.S. 1 (2006) .................................................................... 8, 9

STATUTES

25 P.S. § 3050(a.4)(4) ..................................................................... 5

OTHER AUTHORITIES

Chester County, Chester County – Voting by Provisional

Ballot, YOUTUBE, https://youtu.be/5hWGbYKseqY at

0:41 (last visited Oct. 30, 2024) (cleaned up) ............................ 6

Chester County, Voter Services Director’s Report (May 13,

2024),

https://www.chesco.org/DocumentCenter/View/75903/20

24_05_13-BoE-Directors-Report?bidId= (last visited

Oct. 30, 2024).............................................................................. 5

Commonwealth of Pennsylvania, Voting by Provisional

Ballot, https://www.pa.gov/

en/agencies/vote/voter-support/provisional-ballot.html

(last visited Oct. 30, 2024) ......................................................... 6

MIT Election Data + Science Lab, “Elections Performance

Index,” https://elections.mit.edu/#/data/indicators (see

2020 and 2022 Indicators, “Provisional Ballots Cast”

and “Provisional Ballots Rejected” charts) (last visited

Oct. 30, 2024).............................................................................. 5

Pet. for Review ¶ 70, Republican National Committee v.

Chapman, No. 447 MD 2022 (Pa. Commw. Ct.) (No. 1) ........... 7

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STATEMENT OF INTEREST

Amici are elected Pennsylvania county commissioners, councilmembers, and

election officials from both the Democratic and Republican parties (“County Amici”).1

Collectively, County Amici represent more than half of all Pennsylvanians.

In Pennsylvania, Boards of Elections are tasked with overseeing and

administering federal, state, and local elections, including in-person and mail-in

voting procedures.2 Most County Amici represent counties where the county

commissioners constitute the Board of Elections; in the remaining counties, County

Amici oversee and/or fund the work of the Board of Elections. As officials deeply

invested in the democratic process, County Amici have an interest in ensuring that

all eligible electors in their counties can exercise their fundamental right to vote and

have those votes counted. Responsible for the day-to-day administration of elections,

county officials are experts in the practicalities of how elections are run and have

been run across the state. With the current election well underway, County Amici are

1 No counsel for a party authored this brief in whole or in part, and no party or counsel

for a party made a monetary contribution intended to fund its preparation or

submission. No person other than Amici or Amici’s counsel made a monetary

contribution to the preparation or submission of this brief. A list of all Amici joining

this brief in their respective capacities as independently elected officials is available

at Appendix A.

Because absentee and mail-in ballots are largely treated identically under

Pennsylvania’s Election Code, they will be referred to together as “mail-in voting” or

“mail-in ballots.”

2

1

focused on ensuring that eligible voters can participate, election workers understand

and follow procedures, and constituents trust the systems in place.

SUMMARY OF ARGUMENT

The Pennsylvania Supreme Court’s decision has not upset the election

administration overseen by County Amici. Many have long had the practice of

counting provisional ballots cast by voters who returned mail-in ballots with fatal

defects; the rest are prepared to do so with minimal disruption. County Amici are

concerned that Intervenor-Applicants’ Emergency Application for Stay would,

perversely, upset the status quo ante in many if not most Pennsylvania counties and

create confusion for millions of voters and countless election administrators and

workers less than one week before Election Day. Contrary to the contention that the

Pennsylvania Supreme Court’s decision “departed from the plain terms of the

Election Code to dramatically change the rules governing mail voting,” Emergency

Application for Stay at 1, for years and even decades—well before no excuse mail-in

voting was available in Pennsylvania—numerous counties have routinely counted

provisional ballots in accordance with the same interpretation of the Election Code.

The Pennsylvania Supreme Court’s decision resulted in no change for those

counties. That itself dooms the Application, demonstrating that the decision does not,

applying any standard, “transgress the ordinary bounds of judicial review.” Moore v.

Harper, 600 U.S. 1, 36 (2023). The Pennsylvania Supreme Court’s decision neither

“impermissibly distorted state law,” nor “exceeded the limits of reasonable

2

interpretation of state law,” nor adopted a “truly aberrant interpretation of state law.”

Id. at 38–39 (Kavanaugh, J., concurring) (internal quotations and citations omitted).

Rather, the Pennsylvania Supreme Court affirmed an interpretation of Pennsylvania

law that already prevails among many of the counties represented by County Amici

and across the Commonwealth.

Counting provisional ballots in this manner is not only straightforward and

reliable, it is a critical failsafe that already helps many of the undersigned County

Amici protect the rights of voters. The remaining County Amici can easily implement

the Pennsylvania Supreme Court’s decision, not only because they agree with making

what would be a simple change but because they, like all county election officials in

the Commonwealth, use and are familiar with provisional ballots. The decision was

narrow in terms of actually changing election administration in Pennsylvania. By

contrast, disturbing the Pennsylvania Supreme Court’s ruling would—in the waning

days of an election cycle—disrupt the status quo and create further confusion. For all

of these reasons, this Court’s intervention is not warranted.

ARGUMENT

I.

THE PENNSYLVANIA SUPREME COURT’S DECISION AFFIRMS

EXISTING PRACTICE OF MANY COUNTIES, REQUIRES MINOR

ADJUSTMENTS FOR OTHERS, AND ALIGNS WITH EXISTING

STATEWIDE GUIDANCE

Under “the law of the State as it existed prior to the action of the” Pennsylvania

Supreme Court, it was the established practice of many counties to count provisional

ballots in the circumstances at issue in this case, i.e., when there were fatal defects

3

that prevented Amici from counting the voters’ mail-in ballots. Moore, 600 U.S. at 39

(Kavanaugh, J., concurring) (citation omitted). The characterization in the

Emergency Application that the Pennsylvania Supreme Court’s decision worked a

drastic change in elections administration is simply inaccurate. Moreover, the

decision below aligns with existing statewide guidance and requires only minor

tweaks to the post-Election Day canvassing operations of counties that did not

already comply with the ruling.

County Amici know from experience that the circumstances that gave rise to

this litigation are fairly commonplace in Pennsylvania. Eligible electors submit

absentee or mail-in ballots to county election administrators, and then a defect is

detected. Many County Amici and their Boards of Elections have allowed electors to

do exactly what Faith Genser and Frank Mattis attempted to do in Butler County:

once they learn of the defect, cast a provisional ballot on Election Day that would

enable the county to count exactly one vote cast by that voter in the election. This

practice ensures a reasonable opportunity for voters to have their votes counted while

falling in line with processes clearly established by the legislature.

Allowing voters to use this remedy presents only a minimal change for counties

not previously counting these provisional ballots. To start, many Pennsylvanians

already vote by provisional ballot every year.3 The process is neither onerous nor

3 For example, a report from Chester County’s Voter Services Director notes that

dozens of Chester County electors were able to use the failsafe mechanism of casting

a provisional ballot to be able to vote in the 2024 primary, the election cycle at issue

4

unusual. Further, reviewing and counting provisional ballots is not a complicated or

new burden for the Boards of Elections. It is a familiar process that already exists

and is mandatory. See 25 P.S. § 3050(a.4)(4). The Pennsylvania Supreme Court’s

decision noted the longstanding nature of the practice. App. at 22a-24a (reviewing

the over 20-year history of voting via provisional ballots in Pennsylvania). Counties

have been on notice of the ruling for nearly two months,4 and at most the ruling below

simply requires some counties to count provisional ballots in one more situation than

before.

Pre-existing guidance that Pennsylvania’s voters and all 67 counties had

received from the Commonwealth prior to the Pennsylvania Supreme Court decision

further demonstrates that the decision is consistent with the “law of the State as it

existed prior to the action of the state court.” Moore, 600 U.S. at 39 (Kavanaugh, J.,

concurring) (internal quotation omitted). State and county guidance to voters whose

in the underlying litigation. See Chester County, Voter Services Director’s Report

(May 13, 2024), https://www.chesco.org/DocumentCenter/View/75903/2024_05_13BoE-Directors-Report?bidId= (last visited Oct. 30, 2024).

Federal data indicates that almost one percent of all ballots cast in 2022 and 1.85%

cast in 2020 in Pennsylvania were provisional. See MIT Election Data + Science Lab,

“Elections Performance Index,” https://elections.mit.edu/#/data/indicators (see 2020

and 2022 Indicators, “Provisional Ballots Cast” and “Provisional Ballots Rejected”

charts) (last visited Oct. 30, 2024).

4 The decision of the Pennsylvania Commonwealth Court, which reached the same

substantive outcome as the decision of the Pennsylvania Supreme Court, issued

September 5, 2024, and thus Butler County, at the very least, should have been

operating on the assumption that provisional ballots would be used in this particular

circumstance for the two months prior to Election Day.

5

mail-in ballots will not be accepted reflects the fact that provisional ballots cast on

Election Day are routinely counted. The State’s “Voter Support” website informs

voters that they “may be issued a provisional ballot” if “[y]ou were issued an absentee

or mail-in ballot but believe you did not successfully vote that ballot . . .” or if “[y]ou

returned a completed absentee or mail-in ballot that was rejected, or you believe will

be rejected, by the county board of elections and you believe you are eligible to vote.”5

Counties previously distributed their own instructional materials to voters and staff

in reliance on this understanding of Pennsylvania law. For example, an educational

video from Chester County instructs voters that they may cast a provisional ballot if

“you were issued but did not successfully cast an absentee or mail-in ballot, and you

did not surrender your ballot at the polling place to be voided,” reflecting the county’s

practice of counting such ballots.6 This is well-established and long-standing

guidance about how to interpret Pennsylvania’s Election Code.

As a result, millions of voters in County Amici’s counties have become familiar

with this protocol, having been educated by election officials, exposed to news articles

reporting counties’ practices, and repeatedly instructed in several consecutive

election cycles to submit provisional ballots if their mail-in ballots are likely to be

5 Commonwealth of Pennsylvania, Voting by Provisional Ballot, https://www.pa.gov/

en/agencies/vote/voter-support/provisional-ballot.html (last visited Oct. 30, 2024).

Chester County, Chester County – Voting by Provisional Ballot, YOUTUBE,

https://youtu.be/5hWGbYKseqY at 0:41 (last visited Oct. 30, 2024).

6

6

disqualified.7 Counties have already trained poll workers in this cycle and they are

familiar with these protocols as well.

Simply put, by confirming that Pennsylvania’s Election Code allows

provisional ballots to be counted in a particular circumstance, the Pennsylvania

Supreme Court did not “dramatically upend[] the rules governing mail ballots.”

Emergency Application at 13; see also id. at 17 (suggesting the Pennsylvania

Supreme

Court

“drastically

changed

Pennsylvania’s

election

rules”).

The

Pennsylvania Supreme Court’s decision to affirm the ruling of the Commonwealth

Court does not present major, eleventh-hour alterations to routine processes. Many

counties were already doing what the Pennsylvania Supreme Court now requires,

and other counties can easily adjust given that they all have systems for counting

provisional ballots cast for any reason at all.

II.

THE PURCELL PRINCIPLE COUNSELS AGAINST THIS COURT’S

INTERVENTION AT THIS LATE STAGE

The Emergency Application leverages its mischaracterization of the status quo

ante to contend that the Pennsylvania Supreme Court decision constitutes a “last

minute judicial rewrite[].” Emergency Application at 17. There was no “rewrite.”

7 In fact, Intervenor-Appellants have been aware Philadelphia County has followed

this practice since at least 2020. See Pet. for Review ¶ 70, Republican National

Committee v. Chapman, No. 447 MD 2022 (Pa. Commw. Ct.) (No. 1) (Noting that, in

Philadelphia, “[v]oters whose ballots would be canceled for these defects were

instructed that they could vote by provisional ballot or request a replacement ballot

at a satellite election office.”). And Intervenor-Appellants administratively

challenged Philadelphia’s decision to count nearly 600 of those ballots in 2020, but

did not subsequently appeal the Board’s decision to court.

7

Interpreting the Election Code to decide whether to count ballots for the already past

2024 primary election, the Pennsylvania Supreme Court wrote nothing new at all,

and instead merely analyzed language in various provisions of the Pennsylvania

Election Code in an ordinary act of state statutory interpretation. See Moore, 600 U.S.

at 36 (“We hold only that state 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.”) (emphasis added); see also id. at 34 (“The

State courts are the appropriate tribunals . . . for the decision of questions arising

under their local law, whether statutory or otherwise.”) (quoting Murdock v. City of

Memphis, 87 U.S. 590, 626 (1874)). Moreover, the fact that the Pennsylvania Supreme

Court decision did not work any change in the use of provisional ballots in numerous

counties further demonstrates the narrowness of the decision. It was hardly an act of

judicial “sledgehammering.” Emergency Application at 17.

Given this mis-framing of the decision below, Intervenor-Applicants’ reliance

on Purcell v. Gonzalez, 549 U.S. 1 (2006), is misplaced. Here, Intervenor-Applicants

seek a stay and a revision of an understanding of the Pennsylvania Election Code on

the immediate eve of an election based on a sweeping application of general principles

that have been addressed only in federal court. By contrast, the Pennsylvania

Supreme Court affirmed a lower-court decision regarding an already-conducted

election that had been in place for nearly two months and issued a narrow and

detailed ruling relying on a full record and with no factual disputes.

8

Purcell, on its own terms, is inapposite. There, this Court was “left . . . in the

position of evaluating the Court of Appeals’ bare order” and had “inadequate time to

resolve the factual disputes.” 549 U.S. at 5–6. Importantly, Purcell implicated this

Court’s superintendency of lower federal courts. It did not involve a federal court

stepping in to disrupt a state supreme court’s interpretation of its own election code;

rather, it involved a federal court injunction as to a state law.

The concepts underlying Purcell—timing and the potential for confusion—also

counsel against this Court’s intervention here. This Court “has repeatedly

emphasized that federal courts ordinarily should not alter state election laws in the

period close to an election.” Democratic Nat’l Comm. v. Wisconsin State Legislature,

141 S. Ct. 28, 30 (2020) (Kavanaugh, J., concurring). That is because “[r]unning a

statewide election is a complicated endeavor” requiring “thousands of state and local

officials and volunteers” to participate in a “massive, coordinated effort.” Id. at 31.

It bears emphasizing, from the perspective of County Amici, what a relatively

minor adjustment the Pennsylvania Supreme Court’s decision requires. The

Pennsylvania Supreme Court did not create a new substantive rule or substitute

legislative judgment for its own policy preference. See also id. at 29 (Gorsuch, J.,

concurring) (highlighting that the district court had substituted its policy preference

for that of the state legislature). All it did was examine the Pennsylvania Election

Code to understand how it applies to a particular set of circumstances. In doing so, it

decided the Election Code requires county Boards of Elections to count provisional

9

ballots—a tool already provided for in the Pennsylvania Election Code and that is

already used by many counties in these precise circumstances—cast by voters who

had not successfully returned any other ballot in that election.8

In the experience of County Amici, it is the relief sought by the IntervenorApplicants, and not the decision of the Pennsylvania Supreme Court, that would

jeopardize the smooth administration of the election in Pennsylvania and subvert the

status quo. In the present circumstances, granting the requested stay, or otherwise

upsetting the Pennsylvania Supreme Court’s decision, would effectuate a judicial

change to the rules when the election is close at hand.

And to be clear, that subsequent change would cause confusion among County

Amici’s constituents and across the state. The Pennsylvania Supreme Court’s

decision aligns with County Amici’s understanding and, for many, implementation of

Pennsylvania law. On the other hand, granting the relief sought would require

significant and immediate changes, stripping voters and county election officials of

an important failsafe, just days before the election. It would lead to voters making

futile attempts to cast provisional ballots on Election Day and impose burdens on

election staff in addressing this Court’s intervention. Even if County Amici can invest

in last-minute education efforts, many of their constituents would face needless

Intervenor-Applicants anticipate that “Respondents will likely argue that the

Purcell principle does not apply to federal court review of state court injunctions,”

Emergency Application at 17, but in so framing the anticipated argument, they

overstate the decision. The Pennsylvania Supreme Court did not stay the

Pennsylvania Election Code or bar the application of state law.

8

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confusion, frustration, and disenfranchisement on Election Day. That is the precise

outcome that Purcell is intended to guard against, not cause.

CONCLUSION

For all the foregoing reasons, the Emergency Application for Stay should be

denied.

Dated: October 30, 2024

Respectfully submitted,

Jonathan B. Miller

Shannon Eddy

PUBLIC RIGHTS PROJECT

490 43rd Street, Unit #115

Oakland, CA 94609

Phone: (510) 738-6788

jon@publicrightsproject.org

Joseph J. Khan

CURTIN & HEEFNER LLP

2005 S. Easton Road, Suite 100

Doylestown, PA 18901

Counsel for Amici Curiae

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APPENDIX A—List of Amici Curiae

Pat Fabian

Commissioner, Armstrong County

Dante Santoni, Jr.

Commissioner, Berks County

Diane Ellis-Marseglia

Commissioner and Chair, Bucks County Board of Commissioners

Bob Harvie

Commissioner, Bucks County

Chair, Bucks County Board of Elections

Amber Concepcion

Commissioner, Centre County

Mark Higgins

Commissioner, Centre County

Josh Maxwell

Commissioner-Chair, Chester County

Marian Moskowitz

Commissioner, Chester County

Angela Harding

Commissioner, Clinton County

Christoper Seeley

Commissioner, Crawford County

Justin Douglas

Commissioner, Dauphin County

12

Dr. Monica Taylor

Council Chair, Delaware County

Rock Copeland

Council Member, Erie County

Chris Drexel

Council Member, Erie County

Vince Vicites

Commissioner, Fayette County

Sherene Hess

Commissioner, Indiana County

Bill Gaughan

Commissioner-Chair, Lackawanna County

Matt McGloin

Commissioner, Lackawanna County

Jo Ellen Litz

Commissioner, Lebanon County

Geoff Brace

Commissioner-Chair, Lehigh County

Patty Krushnowski

Council Member, Luzerne County

Jimmy Sabatino

Council Member, Luzerne County

Brittany Stephenson

Council Member, Luzerne County

13

Timothy McGonigle

Commissioner, Mercer County

Neil K. Makhija

Commissioner, Montgomery County

Chair, Montgomery County Board of Elections

Jamila H. Winder

Commissioner and Chair, Montgomery County Board of Commissioners

Lamont G. McClure

County Executive, Northampton County

Seth Bluestein

City Commissioner, City and County of Philadelphia

Lisa Deeley

Commissioner and Vice Chair, City and County of Philadelphia

Omar Sabir

City Commissioner and Chairman, City and County of Philadelphia

Larry Maggi

Commissioner, Washington County

14