The U.S. Supreme Court invalidated a lower federal court’s decision Tuesday allowing Pennsylvania counties to count undated mail-in ballots.
The case originated in 2021 after Republican David Ritter and Democrat Zachary Cohen vied for a judgeship on the Lehigh County Court of Common Pleas and their race came to a near tie. Cohen eventually netted a five-vote lead when the Philadelphia-based Third U.S. Circuit Court of Appeals resolved a dispute between the candidates about whether to count 257 absentee ballots. Those sheets were returned in envelopes on which the voter failed to write a date.
After the Third Circuit Court’s determination, Ritter conceded the election and Cohen took office as a county judge. The Supreme Court’s decision will not change that race’s outcome but it will direct the circuit court to reverse the presidential force of its June ruling, allowing undated absentee ballots to go uncounted in future Pennsylvania elections.
Pennsylvania’s GOP state lawmakers pushed for this resolution, having filed an amicus (i.e., “friend of the court”) brief in favor of following the state law, which instructs election boards not to include undated mail-in ballots in their tallies.
“The Third Circuit’s decision has upended carefully constructed election administration procedures – procedures that were previously upheld by Pennsylvania state courts and the United States District Court,” read the brief submitted by lawyers for Pennsylvania House Speaker Bryan Cutler (R-Quarryville), House Majority Leader Kerry Benninghoff (R-Bellefonte), Senate President Pro Tempore Jake Corman (R-Bellefonte) and Senate Majority Leader Kim Ward (R-Greensburg). “Should the decision be left in place, it is unclear how Pennsylvania will be able to conduct an orderly election in November … .”
After learning the Supreme Court vacated the circuit court’s decision, the state House Republican Caucus urged Democratic Governor Tom Wolf to accept the ruling and focus on election security.
“The plain language of the Pennsylvania Election Code and the legislative intent is clear: Ballots must be dated,” caucus spokesman Jason Gottesman said in a statement. “Instead of continuing to try to legislate through contradictory and confusing guidance documents and relying on conflicting court opinions, the administration would be better spending its time working on comprehensive Election Code changes that can resolve these sorts of outstanding issues through the normal process and also bring uniformity, accessibility, modernization, and security to our elections.”
Leftist advocates for counting undated ballots voiced disappointment in the high court but argued it may not settle the matter in future close races in which undated ballots could play a pivotal role. Marc Elias, a nationally prominent Democratic election lawyer observed on his “Democracy Docket” podcast that the Supreme Court’s move has “persuasive authority,” not “binding authority,” meaning that state courts can still look anew at disputes about undated ballots, possibly deciding to count them.
“What it means is that as we head into a very close election in Pennsylvania, I think the best authority is still that the materiality clause of federal law requires these ballots to be counted,” Elias said. “But we are likely to see more counties controlled by Republicans try to wiggle out of doing that, so it’s going to put more pressure on people who believe in counting every lawful vote and in free and fair elections … to be more vigilant … .”
Democrats argue that the 1964 Civil Rights Act does not permit discarding undated ballots because the omission is “not material” to whether a voter is eligible to cast a ballot or whether the election board received the ballot in timely fashion.
Contentions surrounding the legitimacy of counting undated ballots have come up in numerous Pennsylvania elections. Most notably, attorneys for Republican U.S. Senate contender Dave McCormick successfully argued before the Commonwealth Court in favor of counting undated ballots in an attempt to erase his razor-thin shortfall in his race against Mehmet Oz. Oz ultimately prevailed in the vote count in spite of McCormick’s legal victory.
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Bradley Vasoli is managing editor of The Pennsylvania Daily Star. Follow Brad on Twitter at @BVasoli. Email tips to [email protected].
Photo “Ballot Drop Box” by OSCE Parliamentary Assembly. CC BY-SA 2.0.