A coalition of Republican interests filed a lawsuit in Pennsylvania asserting that there was no appropriate legal foundation in the state for county election authorities allowing certain voters to fix some issues with mail-in ballots they submitted, but they have now been dealt a setback, with a denial early this Thursday of a preliminary injunction in their favor.
Democracy Docket, a voting rights organization, cites the independent state legislature theory in explaining arguments from the plaintiffs. That notion centers on the idea that state legislators — who could be in office in large part because of gerrymandering, making them unrepresentative of the actual population’s interests — possess nearly incontrovertible power regarding the handling of elections in many contexts. A lawsuit is currently pending before the U.S. Supreme Court in which North Carolina legislators are seeking to advance the theory, challenging the ability of state judicial authorities to serve as a check on their rule-making around key federal elections at all. (The case stems from the state Supreme Court blocking Congressional district lines prepared after the latest census numbers by legislators.)
The North Carolina legislators “argue that the U.S. Constitution’s Elections Clause gives state legislatures the power to determine how congressional elections are conducted without any checks and balances from state constitutions or state courts,” as NPR summarizes. As for the case challenging cure procedures for mail-in ballots in Pennsylvania — meaning steps established by local officials by which voters can fix mistakes, the plaintiffs argue that differences in implementing these procedures across counties have created legally inappropriate inequities in absentee voting opportunities across Pennsylvania. It’s telling that the Republicans’ response to this claimed issue is to try and tamp down on options for all Pennsylvania voters to fix potentially simple mistakes with their ballots instead of attempting to expand such opportunities.
The lawsuit includes the Republican National Committee, National Republican Congressional Committee, National Republican Senatorial Committee, Republican Party of Pennsylvania, and individual voters as plaintiffs, and it targets the acting Secretary of the Commonwealth, which is the Pennsylvania position equivalent to that of Secretary of State in other locales. The case asserts there’s no corresponding allowance for ballot curing procedures in the Pennsylvania Election Code or any of the various laws passed by state legislators, Democracy Docket summarizes. The plaintiffs argue that “neither Boards nor any other organ or instrumentality of the State government may regulate” cure procedures.
A hearing in the case prior to the newly unveiled decision against the Republicans behind the lawsuit was held September 22, where among the issues under discussion were that ballots are already going to voters and cure procedures were in place during the 2020 elections. Despite what therefore was the long opportunity for a legal challenge, this Republican Party lawsuit, with the inherent possibility of changing the way votes are tabulated in between voters receiving their ballots and authorities getting them back once they’re completed, comes without much time at all left before Election Day. The mistakes certain voters can fix don’t mean someone who is otherwise ineligible can vote, and they don’t reflect on the legitimacy of votes, meaning whether a particular ballot was completed and returned broadly according to the relevant legal standards, by a real person, and so on. They’re largely procedural in nature.
Cure procedures allow election officials to notify voters of errors on absentee or mail-in ballots. The process enables voters to correct mistakes, such as adding a missing signature, so their ballots will count.
— Democracy Docket (@DemocracyDocket) September 29, 2022
Image: Gage Skidmore/ Creative Commons