WASHINGTON (CN) — The Supreme Court will allow the tally to proceed in Pennsylvania of more than 200 undated mail-in ballots for a state court race still undecided some seven months after the election.
The Thursday order on the court’s emergency docket was not accompanied by an explanation from the majority, but Justice Samuel Alito wrote a dissent joined by Justices Clarence Thomas and Neil Gorsuch.
“The Third Circuit’s interpretation broke new ground, and at this juncture, it appears to me that that interpretation is very likely wrong,” Alito wrote. “If left undisturbed, it could well affect the outcome of the fall elections, and it would be far better for us to address that interpretation before, rather than after, it has that effect.”
David Ritter, a Republican running to be a state judge in Lehigh County last year, says the 257 ballots in question could decide the race. Ritter currently has only a 71-vote lead over his Democratic opponent, Zac Cohen.
Pennsylvania has allowed absentee-ballot options for years, but the state enacted new mail-in voting provisions in 2019. Voters are required to deliver their ballot — by mail or in-person — to the county elections board by 8 p.m. on Election Day. The county election board stamps the return envelope containing the ballots with the date of receipt to confirm they are in on time.
Key to the case here, such ballots have an area on the return envelope for voters to date and sign. The questioned 257 ballots were signed and date stamped by the county elections board but not dated by the voters next to their signatures.
When the issue of envelope dating last came up in 2020, the Pennsylvania Supreme Court decided that undated return envelopes could be counted as long as they were signed. As the 2021 elections approached, the state instructed county boards of elections that ballots in undated envelopes should not be counted, but that there was no basis for rejecting ballots with the “wrong” date on the envelope.
The ballots in question come from registered Democrats and Republicans, and three-quarters of the voters whose envelopes were not signed were senior citizens — 15 over the age of 90 and two over 100 years old.
After the board voted unanimously in November to count the 257 undated mail-in ballots, Ritter sued in protest. The state court ruled against him in December, but the Pennsylvania Commonwealth Court then reversed and held the ballots couldn’t be counted. This in turn spurred a federal suit by voters, claiming the failure to count the ballots would amount to a violation of the Materiality Provision of the Civil Rights Act.
A U.S. district judge found that the provision provided the right to voters under law but no remedy to enforce that right in federal court. The Third Circuit reversed, allowing the ballots to be counted.
Led by Linda Migliori, the voters claim Ritter is attempting to disrupt the status quo and that the envelope date is of no consequence.
“The handwritten date is so inconsequential that the Board of Elections accepted ballots where voters wrote any date whatsoever on the return envelope, even dates from decades ago,” American Civil Liberties Union Foundation attorney Ari Savitzky wrote in a response brief for the voters. “The county clerk affirmed he would have accepted envelope dates from the future. Yet voters who mistakenly omitted the envelope date were disenfranchised.”
Ritter claims that, even though the Pennsylvania Supreme Court was not “shy about overriding the state’s democratically enacted election laws,” the Third Circuit decided to go a step further.
“The Third Circuit has now gone where even the Pennsylvania Supreme Court wouldn’t,” Cameron Norris, an attorney from Consovoy McCarthy representing Ritter, wrote in the candidate’s application. “For that same 2021 election, the Third Circuit has ordered Lehigh County to count over 250 undated ballots — enough to eliminate David Ritter’s lead three times over. Its decision adopts a novel interpretation of an obscure federal statute that would let federal courts set aside any state election law that they deem ‘immaterial.’”
In his dissent, Alito said he believes the Third Circuit’s interpretation is “very likely wrong” and is “plainly contrary to the statutory language.”
“The Third Circuit held that the failure to count mail-in ballots that did not include the date on which they were filled out constituted a violation of this provision, but the Third Circuit made little effort to explain how its interpretation can be reconciled with the language of the statute,” Alito wrote.
Alito said that not counting the ballots was not disenfranchising voters but instead just enforcing the rules.
“When a mail-in ballot is not counted because it was not filled out correctly, the voter is not denied ‘the right to vote,’” Alito wrote. “Rather, that individual’s vote is not counted because he or she did not follow the rules for casting a ballot.”
Commenting on the court’s ruling, the ACLU said that voters are often disenfranchised by obstacles that are not relevant to their eligibility to vote.
“Every vote matters, and every valid vote should be counted,” Savitzky said in a statement. “Voters may not be disenfranchised for a minor paperwork error like this one. The Third Circuit was correct in unanimously reaching that conclusion. We are thrilled for these voters that their ballots can finally now be counted, consistent with the requirements of federal law.”
Follow @KelseyReichmann
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