The Washington PostDemocracy Dies in Darkness

Supreme Court allows ‘undated’ Pennsylvania ballots to be counted

The sense of urgency surrounding the court’s action fell off last week, when Republican Senate candidate David McCormick conceded to rival Mehmet Oz

Election workers count ballots for the Pennsylvania primary election on May 18 in Mercer. (Keith Srakocic/AP)

The Supreme Court on Thursday cleared the way for Pennsylvania to count mail-in primary ballots received by the Election Day deadline but lacked a state-required handwritten date on the return envelope.

There are relatively few “undated” ballots, though they could make a difference in tight races. But the sense of urgency surrounding the Supreme Court’s action diminished last week, when Republican Senate candidate David McCormick conceded to rival Mehmet Oz. McCormick, who trailed Oz by less than 1,000 votes, sued to have the votes counted, and Pennsylvania’s commonwealth court agreed.

But there were not enough of the ballots to make a difference, McCormick decided. Oz will face Democratic Lt. Gov. John Fetterman (D) in the general election, a crucial race for both parties hoping to win control of the Senate in November.

The Supreme Court case also involves a judicial candidate in Lehigh County, who says counting the ballots threatens his lead in a close election. Three justices — Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch — noted their dissents from the court’s order.

Pennsylvania law requires those voting by mail to “fill out, date and sign” a form on the outer envelope used to return their ballots. But election officials concede they will count otherwise valid ballots where the date is obviously wrong, such as reflecting the voter’s birth date or even some date in the future. They just discard the ones where the date is left blank, even if the postmark shows it met the state’s deadline.

A unanimous panel of the U.S. Court of Appeals for the 3rd Circuit said that kind of discrepancy violates a provision of the federal Civil Rights Act of 1964. The provision prohibits government officials from denying the right to vote “because of an error or omission” that “is not material in determining whether such individual is qualified under state law to vote.”

“It must be remembered that all agree that the disputed ballots were received before the 8:00 p.m. deadline on Election Day,” Judge Theodore McKee wrote. “It must also be remembered that ballots that were received with an erroneous date were counted.”

That was a “nail in the coffin,” McKee wrote. “If the substance of the string of numbers does not matter, then it is hard to understand how one could claim that this requirement has any use in determining a voter’s qualifications.”

The Supreme Court’s majority did not explain its reasoning for allowing the 3rd Circuit’s decision to go into effect, as is common in emergency orders.

Alito wrote for the dissenters that the 3rd Circuit’s decision “is very likely wrong.”

“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,” Alito wrote.

Judicial candidate David Ritter, who leads his rival by 71 votes, said that was a decision for the state to make, and state courts in this case had decided the ballots should not be counted if they don’t meet all the requirements.

The 3rd Circuit’s “sweeping” opinion, his lawyers told the Supreme Court, would question the validity of every voting requirement that does not go to “determining age, citizenship, residency, or current imprisonment for a felony.”

It could threaten “virtually every regulation of mail-in voting, including laws requiring voters to use certain writing instruments, use certain envelopes, mail their ballot to the right precinct, declare that their ballot is being delivered by a qualified third party, contain a signature that matches the one on file, and more.”

The ACLU, representing five voters who left the date blank even though they met other requirements, said it was more important that votes be counted than “inconsequential” requirements be met. “The county clerk affirmed he would have accepted envelope dates from the future,” the brief said. “Yet voters who mistakenly omitted the envelope date were disenfranchised.”

Alito agreed with the argument of Ritter, which was also endorsed by the Republican Party.

“One may argue that the inclusion of a date does not serve any strong purpose and that a voter’s failure to date a ballot should not cause the ballot to be disqualified,” Alito wrote. But he contended the federal law “does not address that issue. It applies only to errors or omissions that are not material to the question whether a person is qualified to vote. It leaves it to the States to decide which voting rules should be mandatory.”

Oz filed a brief supporting Ritter. He said the 3rd Circuit’s “thinly reasoned and erroneous decision” was being “weaponized to undermine the apparent result of a statewide primary election for the Republican nomination to represent Pennsylvania in the United States Senate.” It amounts to changing the rules after the election, Oz’s brief said, even though the number of such ballots was likely too small to affect the outcome.

But in the state court case that McCormick filed, a judge said the federal statute and Pennsylvania law protecting voters meant the votes should be counted.

Commonwealth Court President Judge Renée Cohn Jubelirer directed the counties to count the disputed ballots. But she said they would report one tally that includes those ballots and another that does not, until a final decision is made.

The Supreme Court’s case is Ritter v. Migliori.

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