The U.S. Supreme Court on Thursday lifted an order that had injected uncertainty into the debate over whether undated mail ballots should be counted in Pennsylvania elections.
The unsigned order applied specifically to a contested 2021 judicial race in Lehigh County. But the questions raised by that case have plagued election officials as they tallied the votes from the May 17 primary and became a flashpoint in the tight GOP primary for U.S. Senate between Mehmet Oz and David McCormick.
The justices voted to lift a temporary freeze imposed by Justice Samuel A. Alito Jr. last week, which pressed pause on a lower court ruling to include the undated ballots in the final tally of the Lehigh race. But Alito warned in a dissent Thursday that he believed confusion over their legitimacy would persist unless he and his other colleagues on the Supreme Court weighed in soon and could affect Pennsylvania’s November elections.
“It would be far better for us to address that (issue) before, rather than after, it has an effect,” Alito wrote. He was joined by Justices Clarence Thomas and Neil Gorsuch in his dissent.
At issue are mail ballots that arrived on time but are missing the handwritten date on their outer envelopes required by state law. Previously, those ballots would have been rejected.
But in ruling on the Lehigh County case in May, the U.S. Court of Appeals for the Third Circuit held that the state’s dating requirement — under which counties accept ballots with the wrong date as long as any date is on the envelope — was arbitrary in determining whether a ballot was cast by an eligible voter.
The Third Circuit ordered those ballots counted in the final tally of the Lehigh County race and said rejecting them for an immaterial technicality violates federal civil rights law. That sent elections administrators across the state scrambling to figure out whether they should be counted undated mail ballots in this year’s primary races, too.
Alito’s temporary hold last week on the Third Circuit’s ruling — made at the request of David Ritter, one of the Lehigh candidates — was meant to temporarily press pause on the situation while the wider court considered an official stay while it mulled hearing the case on appeal. It has not yet decided whether to take up the case.
But by that time, McCormick — who was locked in his neck-and-neck Senate contest with Oz — had seized upon the Third Circuit’s logic to argue before the Pennsylvania Commonwealth Court that undated mail ballots should be counted in the May 17 primary, too.
Ruling on that case last week, the Commonwealth Court’s president judge, Renee Cohn Jubelirer, said she found the Third Circuit’s reasoning persuasive and issued a temporary injunction ordering Pennsylvania counties to include undated mail ballots in the vote tallies they submitted to the state.
(She noted in her opinion that Alito’s delay order had not addressed the Third Circuit’s findings in detail and that it didn’t, in her view, change the persuasiveness of its findings.)
“This case presents an interesting situation where the status quo is that every county board is making its own determination on what to do with these ballots,” Cohn Jubelirer wrote. “This raises the specter of the unequal treatment of qualified voters in Pennsylvania in that some qualified voters who happened to not date their exterior envelopes are having their vote counted and others are not.”
McCormick dropped out of the race on Friday, and Oz and the state and national Republican parties have since moved to vacate Cohn Jubelirer’s ruling.
In his dissent Thursday, Alito called the Third Circuit’s decision in the Lehigh case “very likely wrong” and encouraged his fellow justices to fast-track a decision on whether they would hear the appeal so that the case could be decided before the November election.
Still, the ACLU, which argued the case on behalf of Lehigh County voters whose ballots were in danger of being rejected, hailed the court’s order Thursday as a victory.
“In future elections, this issue could impact thousands of voters in Pennsylvania,” said Ari Savitsky, senior staff attorney with the ACLU’s Voting Rights Project. " We are hopeful that this ruling diminishes the likelihood of disenfranchisement of voters for what is a simple human error.”
Joshua Voss, an attorney for Ritter, said in a statement that he looked forward to the opportunity to present his full argument to the court.
“While we are disappointed that a continued stay was not granted, we are encouraged that at least three Justices have been persuaded that these issues are far from certain or resolved, and we look forward to presenting a complete cert petition for the full Court’s review in the immediate future,” Voss said.
