On Friday evening, the Supreme Court ruled it would leave in place a Pennsylvania Supreme Court decision that made it marginally easier for certain voters in the state to cast a ballot. The Republican Party had asked the justices to block that decision; doing so would have likely disenfranchised thousands of voters.
The Supreme Court decides not to toss out thousands of Pennsylvania ballots
One of the worst ideas in US constitutional law will remain dead.
Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court.
But that won’t happen. The Court’s decision in Republican National Committee v. Genser was unanimous, although Justice Samuel Alito wrote a statement indicating that he and Justices Clarence Thomas and Neil Gorsuch are only ruling against the GOP on narrow procedural grounds.
The problem at the heart of the case was that Pennsylvania law is unusually strict regarding how mailed ballots must be returned by voters. They must be stuffed in two envelopes, and if the inner envelope is missing, the ballot is void. The state supreme court decision at issue in Genser ruled that voters who cast such a voided ballot can still vote if they show up on Election Day and cast a provisional ballot.
The case was closely watched because the presidential race is expected to be tight, and it is likely that the decision will impact several thousand voters. Also, Democrats tend to vote by mail more often than Republicans. So, if the presidential election is indeed very close and it all comes down to Pennsylvania — and if mail-in ballots do favor Democrats this year — a victory for the GOP in Genser could have flipped the result and put Donald Trump back in the White House.
A win for the GOP could have scrambled future elections, too. The GOP’s legal arguments relied on a radical theory known as the “independent state legislature doctrine,” which the Supreme Court has rejected many times, but which all but one of the Court’s Republican members have expressed sympathy toward in the past.
If you want a full explainer on this doctrine, you can read my preview of the Genser case here. But the important thing to know about it is that it takes power over elections away from state courts and places it in the hands of state legislatures, in a manner that could completely scramble how the US currently holds elections. A brief filed by an array of admirals, generals, and service secretaries warned that the doctrine “undermines election integrity and exacerbates both domestic and foreign threats to national security.”
So the Court was asked to play with some very dangerous magic in Genser and, to their credit, all nine justices refused this request.
The decision should also give a small degree of comfort to Democrats, who’ve had good reason to wonder if this Court — which has a 6-3 Republican majority — can be trusted to referee a close election after its Trump v. United States immunity decision, in which the justices declared Trump was allowed to commit many crimes as president. At the very least, Genser is a sign that this Court won’t embrace literally any legal theory put forth by the Republican Party.
