In a high-stakes development, Republicans have asked the U.S. Supreme Court to weigh in on a recent decision by the Pennsylvania Supreme Court, potentially nullifying thousands of votes. The decision revolves around the Genser v. Butler County Board of Elections case, where Pennsylvania’s top court ruled that voters whose mail-in ballots were voided due to errors could still vote in person on Election Day. With the 2024 presidential race expected to be close, any shift in Pennsylvania’s voting landscape could decisively impact the election, especially if it comes down to a slim margin between Kamala Harris and Donald Trump.
What’s at Stake in Genser?
The Genser case centers on whether Pennsylvania voters who submit invalid mail-in ballots due to minor technical mistakes can still vote provisionally in person. Pennsylvania’s Supreme Court ruled in favor of allowing these voters to cast a provisional ballot on Election Day. This ruling could impact thousands of Pennsylvanians, granting them a second chance to have their votes counted. The decision, however, split the court 4-3 along party lines, illustrating the complex and contentious nature of the issue.
If the U.S. Supreme Court intervenes and rules in favor of the Republican request to disallow provisional voting for these voters, it would invalidate thousands of ballots that could potentially benefit Democrats. Given the tight race and Pennsylvania’s swing-state status, the outcome of the Genser case could, in a close election, determine the next president. But beyond its immediate impact, this case poses profound implications for U.S. democracy.
The Independent State Legislature Doctrine: A Threat to Election Integrity?
Central to this case is the independent state legislature doctrine (ISLD), a legal theory that claims state legislatures have exclusive authority over federal election laws within their states, unchecked by state courts or even governors. The ISLD has been rejected by the Supreme Court multiple times, including in Moore v. Harper (2023), where the Court emphasized that state courts hold interpretive power over election laws under the state constitution. However, a recent opinion in Moore included a line stating that state courts "may not transgress the ordinary bounds of judicial review," potentially opening the door for U.S. Supreme Court intervention in cases where state courts are perceived to overstep their role.
The Genser case presents a potential testing ground for ISLD, and if the U.S. Supreme Court upholds this doctrine, it could mark a shift in power, granting unprecedented authority to state legislatures while limiting judicial oversight. Legal experts, retired military officials, and former security leaders argue that ISLD threatens election integrity and stability, introducing confusion over who holds ultimate authority in election matters. Allowing state legislatures unchecked power to set election rules, they caution, could open the door to potential abuses and undermine voter confidence.
Legal Precedents Against the ISLD
The Supreme Court has historically rejected the independent state legislature doctrine, viewing it as a threat to the checks and balances that safeguard democracy. The first rejection came in Davis v. Hildebrant (1916), where the Court upheld Ohio’s law allowing citizens to veto state election laws via referendum. Similar rejections followed in 1932 and as recently as 2015, with the Court clarifying that “legislature” encompasses any body or process capable of enacting laws under a state constitution, including governors, courts, and even the people themselves.
While ISLD’s premise may seem straightforward – the U.S. Constitution says state “legislatures” dictate election rules – legal scholars argue that this interpretation is oversimplified and inconsistent with the historical context. Early American constitutions often used “legislature” to mean the state’s law-making power, not merely its legislative body. Reintroducing this doctrine, then, could disrupt long-established state governance processes and erode state-level protections on voting rights.
Pennsylvania’s Unique Voting Law Quirk
The Genser case arose from a distinct Pennsylvania voting rule: mail-in ballots must be placed inside two envelopes, with one acting as a secrecy barrier to shield voter identity. A missing secrecy envelope renders the ballot "void," according to Pennsylvania law. In the 2020 election, a large number of ballots were voided due to this issue, with Democratic voters disproportionately affected. Following public awareness efforts, secrecy envelope-related rejections dropped significantly, but the rule remains contentious.
The plaintiffs in Genser argued that voters whose ballots are voided for lack of a secrecy envelope should be allowed to vote provisionally. While Pennsylvania law typically restricts provisional ballots for mail-in voters, the state Supreme Court found that voided ballots essentially "do not exist" and thus shouldn’t bar affected voters from casting a provisional ballot. Republican leaders argue that this interpretation oversteps judicial authority and erodes legislative power, asking the U.S. Supreme Court to intervene.
What Could Happen Next?
The final outcome in Genser could have far-reaching implications. If the U.S. Supreme Court sides with Republicans, thousands of Pennsylvania voters could be denied their opportunity to cast a ballot in November. While it’s uncertain how many voters would be affected, data from 2019 and 2020 elections suggest thousands of votes could be at stake – votes that may, given trends, lean Democratic. This decision could be pivotal if the presidential race hinges on Pennsylvania’s results and is decided by a slim margin.
For Americans, the Genser case is a bellwether for the future of democratic processes in the U.S. The Supreme Court’s decision will reveal whether it’s willing to allow the ISLD, potentially upending traditional checks and balances and raising concerns over election security. In an already tense political landscape, this case highlights the ongoing battle over voting rights, judicial power, and the very structure of democracy.