Plus: Marriage equality on the ballot, what’s at stake in Montana, and more ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌ ‌

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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 postelection.

Last week, the Pennsylvania Supreme Court issued a long-awaited decision in Genser v. Butler County Board of Elections

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, 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

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detailing the ruling (also cross-posted on Slate

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).

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

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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 (RNC), an intervenor in the case, has petitioned the Supreme Court for an emergency stay of the ruling. (In Moore v. Harper

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, the U.S. Supreme Court left open a narrow window

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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

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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

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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

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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.





Election 2024: Marriage Equality Is Back on the Ballot

This year, voters in California, Colorado, and Hawaii will decide whether to strike provisions against marriage equality passed in the early 2000s from their constitutions. “While the amendments would have little effect if passed now, their proponents are bracing for the future,” write Brennan Center senior counsel Kathrina Szymborski Wolfkot and NYU law student Morgan Munroe. The Supreme Court has made it clear that it is willing to roll back rights, Wolfkot and Munroe explain, and Justice Clarence Thomas has specifically called for the Court to reconsider protections for same-sex marriage. Read more

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Voting Protections in Washington State

“A case before the Washington Supreme Court presents an opportunity for it to establish strong protections for voters against any state action that could inhibit their ability to cast a ballot,” write Brennan Center counsels Andrew Garber and Michael Milov-Cordoba. The case challenges the state’s use of signature verification to confirm the identity of voters, and it presents an opportunity to clarify how courts should assess such challenges. Read more

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Election 2024: What’s at Stake in the Montana Supreme Court Elections

There are open races for two seats on the Montana Supreme Court this year. “The court’s recent decisions on reproductive and voting rights — some of its highest-profile rulings — will likely endure any changes in composition resulting from this year’s elections, at least for the time being,” write Brennan Center senior counsel Douglas Keith and NYU law student Morgan Munroe. However, they expect that the new justices will have a substantial influence on criminal law and the scope of the right to a clean environment in Montana. Read more

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Election 2024: Ballot Measures That Could Affect State Courts

Proposed ballot measures in several states this year could bring major changes to state judiciaries, writes Brennan Center counsel Michael Milov-Cordoba. He describes three of the most important initiatives: one that would eliminate retention elections in Arizona, another that would increase the mandatory retirement age in New Hampshire, and a third that could change the way Colorado handles judicial misconduct complaints. Read more

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A Rallying Cry Against Lockstepping

State supreme courts too often peg their constitutions’ meanings to interpretations of similar provisions by a U.S. Supreme Court currently “prone to swings in law,” writes Kevin Frazier, an assistant law professor at the Benjamin L. Crump College of Law at St. Thomas University. This approach interjects “a harmful and preventable degree of uncertainty into their respective state constitutional jurisprudence,” he argues, and undermines “rule of law, rights protection, and federalism itself.” Read more

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Upcoming Oral Arguments Related to Criminal Justice

There are various restrictions associated with criminal charges and convictions beyond a sentence handed down by a judge. In November, state supreme courts around the country will hear oral arguments considering such collateral consequences, including GPS monitoring, random drug testing, and a law requiring the state to publicize suspensions of teachers charged with serious crimes — and the implications for educators whose charges are subsequently resolved in their favor. State Court Report advisor Sarah Kessler previews upcoming oral arguments in Massachusetts, Oregon, Pennsylvania, and Washington. Read more

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What Else We’re Reading and Watching

State Court Report and the Brennan Center hosted a discussion Tuesday about what’s at stake on state ballots. The panel of experts, moderated by State Court Report editor in chief Alicia Bannon, delved into ballot measures on issues including reproductive rights, gerrymandering, same-sex marriage, and more. Watch the video here

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.

The National Center for State Courts released a tracking tool

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for upcoming elections for state supreme courts and court-related ballot measures.





You May Have Missed

Robert Roberson, convicted of murdering his daughter in 2002 under the now widely discredited “shaken baby syndrome” hypothesis, was set to be executed in Texas this month. But a state house committee issued a subpoena requiring him to testify at a hearing — scheduled for four days after his execution — about a 2013 law that allows a person convicted of a crime based on debunked science to seek relief. No one

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on death row in Texas has ever successfully overturned their conviction using the law. The Texas Supreme Court blocked

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officials from executing Roberson to prevent his compliance with the subpoena, effectively staying his execution and deepening a dispute

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between the legislators and Gov. Greg Abbott over the enforcement of the death penalty.

The Georgia Supreme Court unanimously affirmed the denial

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of a district attorney’s effort to dismiss a state Open Records Act request relating to her office’s “failure . . . to effectively prosecute criminal cases, and an open disregard for the laws of the State of Georgia.” As State Court Report

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has written, prosecutors’ work is repeatedly being called into question for their use of discretion in deciding which cases to prosecute.





Notable Cases

State v. Miller

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, Iowa Supreme Court

Held that the Iowa Constitution’s cruel and unusual punishment clause does not prohibit sentencing juvenile offenders to a minimum prison term before they are eligible for parole, and rejected the defendant’s argument that the same clause bars such a sentence unless there is expert testimony concerning defendants’ “youthful characteristics.” // Iowa News Now

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Paschall v. Thurston

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, Arkansas Supreme Court

Ruled that votes for a proposed marijuana-related amendment will not be counted because the name and ballot description for the measure are misleading. In a divided decision, the court said that the name improperly suggests that the measure’s scope is limited to medical marijuana, and that the name doesn’t inform voters that the measure could also restrict the state legislature from repealing or amending future amendments on any topic without a public vote. // Associated Press

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Cincinnati Enquirer v. Bloom

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, Ohio Supreme Court

Found the blanket sealing of a juvenile’s delinquency records when the juvenile is found not delinquent — the juvenile equivalent of not guilty — unconstitutional because there was no determination that the harm to the juvenile outweighed the public’s right to access court records. The court also said that, when the opportunity presents itself, it may revisit other precedents wherein a litigant raised a claim under the Ohio Constitution and the court, “without any independent analysis,” had interpreted the state claim “in lockstep with the United States Constitution.” // Court News Ohio

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You can find briefs and opinions from notable state constitutional lawsuits in our State Case Database

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.









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