Dem
49
GOP
51
Election laws are complicated and voters don't always understand them. Sometimes the voters make mistakes. Sometimes they forget to write the date on the outer envelope. Sometimes they forget to enclose their ballot in the inner envelope or security sleeve. Sometimes they make other small mistakes that violate some provision of state law. The big question is: What should election officials do with an imperfect ballot? Typical options are:
In Pennsylvania, an issue arose during the Democratic Primary earlier this year. Some voters just put their ballots in the outer envelope without first putting them in the inner secrecy sleeve. These are called "naked ballots." This meant that election workers could see how they voted when they opened the outer envelope. Preventing election workers from seeing the actual ballot is why the security sleeve is provided. Pennsylvania law requires that it be used, even if the voter doesn't care who sees the ballot. Naturally there was a lawsuit. There is always a lawsuit. Republicans frown on nakedness and wanted the naked ballots to be chucked into the garbage (or perhaps shipped to Puerto Rico since in their view, that is already Garbage Central).
Well, the case got to the Supreme Court. It always does. Yesterday the Court ruled that voters whose naked ballot had been rejected were allowed to show up on Election Day and cast a provisional ballot and have it counted. The lawsuit was specifically about nakedness. It did not address datelessness and other defects. Those lawsuits will probably show up later.
It is not clear how many votes will be affected in this key swing state. Not all counties notify voters that their absentee ballot will not be counted. If a voter has the right to cast a provisional ballot but doesn't know it, that doesn't help much.
If you want to get into the weeds here, the two voters who sued were informed that their absentee ballots had been rejected and cast provisional ballots. The legal issue is whether those provisional ballots should have been counted. The RNC argued that Pennsylvania law states that if someone casts an absentee ballot that is received before Election Day, that voter may not cast a provisional ballot. Since these voters did that anyway, the RNC argued the provisional ballots were illegal and should not have been counted. The plaintiffs argued that the law implicitly means that if a valid absentee ballot is received on time, then the voter may not cast a provisional ballot, but if the received ballot is rejected, then the voter may cast a provisional ballot and it must be counted. The Supreme Court let stand the decision of a Pennsylvania court that a provisional ballot must be counted when a voter casts a naked ballot on time that is rejected and then later casts a provisional ballot. It was a fairly narrow decision. There were no oral hearings and the Court didn't rule on the merits of the case and certainly didn't rule on related issues, like envelopes lacking a date. Stay tuned. (V)