EMERGENCY DOCKET

Court allows Pennsylvania officials to count ballots that arrived in undated envelopes

The Supreme Court on Thursday cleared the way for a Pennsylvania county to count mail-in ballots that do not comply with a state law requiring voters to write the date on the ballot’s envelope. Although the case arose from a single local judicial race, it raised broader issues about how federal voting-rights protections apply when voters fail to meet state clerical requirements — a conflict that may crop up again in this year’s midterm elections.

In an unsigned and unexplained order, the justices rejected an emergency appeal from a Republican candidate who currently holds a narrow lead in a 2021 race for a judgeship on a Lehigh County trial court. The candidate, David Ritter, wanted the justices to block the local board of elections from counting ballots that were received by Election Day but arrived in undated envelopes.

Justice Samuel Alito dissented from the ruling, in a five-page opinion that was joined by Justices Clarence Thomas and Neil Gorsuch. He urged the court to take up the case on the merits and fast-track it for an argument in October so that it can resolve the issue before the November elections.

The dispute, Ritter v. Migliori, stemmed from a race last fall for three positions on the Lehigh County Court of Common Pleas. After initial tallies, three Republicans were in the lead. But Ritter, the third-place candidate, was just 71 votes ahead of the fourth-place candidate, Democrat Zac Cohen. 

Under Pennsylvania law, voters must put their mail-in ballots in an envelope, and then place that envelope in a second, outer envelope for mailing. Voters must sign and date a declaration on the exterior envelope attesting that they are eligible to vote and have not yet already voted. But 257 of the mail-in ballots cast in November 2021 in Lehigh County were not dated. The board of elections voted in November 2021 to count the undated ballots, reasoning that the ballots had been received on time and that the failure to date the outer envelopes was simply a “technical error.”

Ritter went to state court to challenge that decision. The board certified the two Republican candidates who were leading by more than 257 votes, but the certification of the third seat was put on hold. A state appeals court ruled that, under state law, the 257 undated ballots could not be counted.

A group of five voters whose ballots had not been dated, and therefore were set aside, then went to federal court, where they argued that Pennsylvania’s dating requirement violates a provision of the federal Civil Rights Act that prohibits states from denying the right to vote based on an error or omission that is not “material” to the voter’s qualifications. The federal district court ruled that the voters did not have the right to bring a lawsuit to enforce the materiality requirement, but the U.S. Court of Appeals for the 3rd Circuit reversed. It concluded both that the voters could bring a federal civil rights claim and that the failure to count the ballots that were not dated violated the federal materiality requirement.

Ritter came to the court on May 28, asking the justices to put the 3rd Circuit’s ruling on hold and block Lehigh County from counting the undated ballots to give him time to seek Supreme Court review of the appeals court’s ruling.

Pennsylvania’s ballot-dating requirement does not violate federal law, Ritter argued. The materiality provision of the Civil Rights Act, he contended, merely bars the state from denying the right to vote for reasons that are unrelated to the qualifications for voting, such as citizenship or age. But here, Ritter argued, it is not a question of whether the challengers are qualified to vote; the question is whether they followed the rules for submitting their ballots.  

The stakes are much bigger than his race alone, Ritter continued. Other federal courts could follow the 3rd Circuit’s reasoning, he warned, to “rewrite dozens of state election laws around the country,” involving measures such as witness or notary requirements for mail-in ballots that are “ubiquitous” and necessary to prevent voter fraud. Ritter urged the justices to step in and put the 3rd Circuit’s decision on hold, rather than “wait until it affects the outcome of the current recounts, a U.S. Senate election in November, or the presidential election in 2024.”

Linda Migliori and the other Lehigh County voters whose ballots were set aside told the justices that the case involves only the “routine application of a federal statute to a single local election, requiring the counting of 257 votes by voters who were unquestionably eligible to vote and whose votes were concededly received in a timely manner.” Indeed, they noted, the board of elections had accepted ballots bearing clearly incorrect dates – even dates in the future. It was only ballots with missing dates that were set aside.

The voters also questioned whether Ritter even had a legal right to challenge the decision to count the votes. Neither Pennsylvania nor the board of elections has asked the Supreme Court to step in, they noted; instead, the county board of elections submitted only a short letter, telling the justices that it did not take a position on Ritter’s request.

The 3rd Circuit’s ruling will have a far narrower effect than Ritter suggests, the voters added, because it applies “only where a state actor disenfranchises a voter based on a minor paperwork error, if that error is unrelated to their eligibility to vote under state law in the election.”

In a two-sentence order issued shortly after 3 p.m. on Thursday, the justices turned down Ritter’s request, allowing the counting to proceed. As is common in emergency appeals, the court did not provide an explanation for its decision.

In his dissent, Alito cited “concern about the effect that the Third Circuit’s interpretation of” the materiality requirement could have on the state’s November elections. That interpretation, he suggested, “broke new ground” and was “very likely wrong.” First, he explained, the rejection of a mail-in ballot that was not filled out properly does not constitute the denial of “the right to vote”; instead, Alito contended, “that individual’s vote is not counted because he or she did not follow the rules for casting a ballot.” Second, he continued, whether someone is “qualified” to vote hinges on factors such as age and residence, rather than whether the voter has completed the ballot properly.

Because “it would be far better for us to address” the 3rd Circuit’s interpretation before the fall elections, Alito concluded, he would have blocked the counting of the undated ballots so that the justices could decide the dispute on the merits. But Alito seemed to suggest that the justices could still do so quickly, writing that “any petition for certiorari and brief in opposition should be filed expeditiously. If that is done,” Alito observed, “the Court will be in a position to grant review, set an expedited briefing schedule, and if necessary, set the case for argument in October.”

This article was originally published at Howe on the Court.