The United States Supreme Court has handed Pennsylvania Republicans a victory less than a month before Election Day 2022. However, it hasn't changed the attitude of Pennsylvania's top elections official who says she won't change her department's instructions to county election boards.
By a 7-2 majority, the high court threw out a ruling from the Third U.S. Circuit Court of Appeals that allowed undated mail-in ballots to be counted in a Keystone State election.
Justices Sonia Sotomayor and Ketanji Brown Jackson said they would not have heard the case.
The Third Circuit's May ruling said that 257 mail-in ballots had to be counted in a 2021 Lehigh County judicial election, even though they didn't include a proper date on the envelope. The appellate court found the state election law requirement for a date to be included on the envelope to be “immaterial.”
The decision to count improperly dated ballots led to Republican David Ritter losing the election by five votes out of 65,333.
The Supreme Court decision doesn't change the results of the race and could lead to confusion with the Pennsylvania Department of State, which insists counties count ballots with inaccurate or missing dates despite Pennsylvania law clearly saying otherwise.
Voting rights activist and acting Pennsylvania Secretary of State Leigh Chapman (D) issued the following statement in response to the Supreme Court's decision:
Every county is expected to include undated ballots in their official returns for the Nov. 8 election, consistent with the Department of State's guidance. That guidance followed the most recent ruling of the Pennsylvania Commonwealth Court holding that both Pennsylvania and federal law prohibit excluding legal votes because the voter omitted an irrelevant date on the ballot return envelope.
Today's order from the U.S. Supreme Court vacating the Third Circuit's decision on mootness grounds was not based on the merits of the issue and does not affect the prior decision of Commonwealth Court in any way. It provides no justification for counties to exclude ballots based on a minor omission, and we expect that counties will continue to comply with their obligation to count all legal votes.
Joshua Voss, a lawyer for Ritter, encouraged the Pennsylvania Department of State to update its guidance but added that “at the end of the day, elections are administered by counties and counties will need to assess what the state of the law was.”
The Pittsburgh Post-Gazette continues:
Mr. Voss had argued to the Supreme Court that the Third Circuit ruling was already being cited in other cases but should be declared moot.
He said it's possible that more litigation over the undated envelopes might occur if there is a close race in November and a candidate wants to seek a court review.
“I don't know about ‘likely' because it would require a close race. So, possible? Yes. Likely? I don't know. Remember, these ballots made the difference in Ritter's race, which is why the case existed,” Mr. Voss said.
Jason Gottesman, a spokesperson for the state House Republican Caucus, said in a statement that Pennsylvania law “is clear: ballots must be dated,” and urged the Wolf administration to work on comprehensive election law changes that will make the process more uniform, accessible, modern and secure. The case involves the law's requirement for handwritten dates on return envelopes that are also logged in by county election workers and generally have been postmarked.
Justice Samuel Alito previously wrote the Third Circuit's decision “could well affect the outcome” of this year's elections.
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