Major Election Rulings in Georgia, Nevada, and Pennsylvania

With a presidential election that could be decided on razor-thin margins, there’s been a wave of election litigation this year, particularly in battleground states, over the mechanics and processes of how (and whether) votes will get counted. Three of the most significant rulings came from state courts in Pennsylvania, Nevada, and Georgia over the past few weeks, and more litigation is almost certain to come post-election. 

Last week, the Pennsylvania Supreme Court issued a long-awaited decision in Genser v. Butler County Board of Elections, ruling 4–3 that Pennsylvanians whose mail-in ballots are disqualified have a right to cast a provisional ballot and have their vote counted. (A provisional ballot is segregated from other ballots and gets counted if election officials determine that the individual was eligible to vote.) State Court Report’s Erin Geiger Smith and Sarah Kessler wrote an excellent piece detailing the ruling (also cross-posted on Slate). 

As Geiger Smith and Kessler explain, more than 1.7 million Pennsylvanians have already requested mail ballots, but state law imposes several procedural hurdles before these ballots can actually be counted, including requirements that voters place their ballots in a secrecy envelope and hand write the date. (The latter is subject to ongoing litigation, with the state’s intermediate appellate court today upholding a trial court ruling that refusing to count undated or misdated mail ballots violates the state constitution.)

The question before the Pennsylvania Supreme Court was what happens if a mail ballot is disqualified: Are voters simply out of luck, or can they still get their votes counted by casting a provisional ballot? (In Butler County, elections officials refused to count the provisional ballots.) 

Although the plaintiffs raised claims under the state constitution’s free and equal elections clause, the court’s decision was statutory, ruling that Pennsylvania’s election code itself requires that officials count provisional ballots. The election code, the court explained, was written to enable citizens to vote, and the legislature didn’t intend to entirely disenfranchise voters simply for making a mistake that disqualified their mail ballot. This rationale “flows directly from the text of the Election Code,” the court found, while also suggesting that a contrary reading of the statute might well violate the state constitution by leading to “unnecessary disenfranchisement.” 

While the facts before the court related to plaintiffs who had failed to place their mail ballots in secrecy envelopes, the court’s reasoning suggests broad application to any voters whose mail ballots are disqualified. 

One other point to note is that the Republican National Committee, an intervenor in the case, has petitioned the Supreme Court for an emergency stay of the ruling. (In Moore v. Harper, the Court left open a narrow window for federal court review of state court rulings regarding state law when state courts “transgress the ordinary bounds of judicial review” in federal election cases.) I think it is extraordinarily unlikely that the Court will take up this case — which looks to be a perfectly ordinary example of statutory interpretation and doesn’t involve the kind of constitutional ruling that formed the basis for Moore — but we’ll be tracking any further developments.

Mail voting was also the topic of a major ruling from the Nevada Supreme Court just this week. At issue in Republican National Committee v. Aguilar was whether mail ballots received without a postmark fall under a state law that requires election officials to count mail ballots whose postmark date “cannot be determined” as long as they are received by 5 p.m. on the third day after the election. Affirming a lower court ruling denying a preliminary injunction sought by the RNC, the court determined that the statutory language was ambiguous but that both legislative history and public policy support counting the un-postmarked ballots. The stated purpose of the law, the court emphasized, was “expanding, rather than limiting, voting rights.”

Other recent big news came from Georgia. The state’s election board recently adopted a number of widely criticized rule changes, including one that appears to give local officials discretion not to certify election results, and another that requires election workers to hand count the number of ballots at the close of polls — creating a risk of confusion and mishandling. These rule changes have prompted multiple lawsuits and a lot of legal wrangling, as Geiger Smith details in a new explainer. Both the certification and hand-count rule (along with several other recent rule changes) have been enjoined by lower court judges, and last week, the Georgia Supreme Court declined to expedite an appeal by the RNC. This means that the rules will stay blocked through the election.

Looking forward, I’ve been hearing lots of questions (and fears) about rogue election officials bypassing state processes and refusing to certify the results of the presidential election based on discredited claims of fraud or rigging. The good news is that election certification isn’t discretionary and state officials and courts have a number of tools to ensure compliance. The Brennan Center’s Lauren Miller Karalunas offers a detailed overview of the certification process in seven battleground states, including the safeguards that exist in the event that election officials refuse to certify results. We’ll continue to follow election litigation state by state before, during, and after Election Day.

Alicia Bannon is editor in chief for State Court Report. She is also director of the Judiciary Program at the Brennan Center for Justice.

Suggested Citation: Alicia Bannon, Major Election Rulings in Georgia, Nevada, and Pennsylvania, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ(Oct. 31, 2024), https://statecourtreport.org/our-work/analysis-opinion/major-election-rulings-georgia-nevada-and-pennsylvania