Alito, who has jurisdiction over the lower court involved in the case, issued an administrative stay in the case to give the justices more time to consider the issue.
David Ritter, a Republican state judicial candidate in Lehigh County, wants the Supreme Court to block the appeals court decision, arguing that if the ballots were counted, he would lose his election to Democratic rival Zachary Cohen.
The case has drawn the interest of voting rights experts because it pits state election law against federal law and raises questions regarding when voters can be disenfranchised for making errors in voting that some believe are ultimately “immaterial” to determining the validity of the ballot. It comes as the last election cycle was one of the most litigious in recent history.
“In this case, voters forgot to date their ballots but their ballots arrived on time and we know they were timely,” said election law expert Rick Hasen at the University of California, Irvine. Hasen noted that the state ultimately did accept ballots where the voter put in the wrong date.
The current dispute at the court dates to 2019, when the Pennsylvania General Assembly enacted new mail-in voting provisions. To receive the mail-in ballot a voter must complete an application, provide her name, address and proof of identification. If the material is consistent with registration information, the voter receives a ballot package with instructions to complete the mail-in ballot.
Under the Pennsylvania Election Code, the voter must date and sign the declaration that is printed on the return envelope. Delivery is timely if received by the board of elections by 8 p.m. on Election Day.
The Lehigh County Board of Elections held an election on November 2, 2021, to fill vacancies for the office of Judge of the Court of Common Pleas of Lehigh County. During the count, the board set aside 257 of 22,000 votes because they lacked a handwritten date next to the voter declaration. All the ballots were received by the 8 p.m. deadline. The board initially decided to count the votes, but Ritter challenged the decision in state court. The trial court ruled for Cohen, but the commonwealth court reversed on appeal. The Pennsylvania Supreme Court declined to upend the decision.
The ruling triggered a handful of voters whose ballots were set aside to sue in federal court. Represented by the American Civil Liberties Union, they argued, in part that the state’s dating requirement violates a “materiality” provision of the Civil Rights Act that forbids denying the right to vote based on an error that is deemed “not material.” The voters lost at the district court level, but the 3rd US Circuit Court of Appeals reversed and ordered that the undated ballots be counted.
“Ignoring ballots because the outer envelope was undated, even though the ballot was indisputably received before the deadline for voting serves no purpose other than disenfranchising otherwise qualified voters,” the appeals court said.
Ritter appealed the decision to the Supreme Court. Cameron T. Norris, a lawyer for Ritter, argued that the appeals court reasoning will serve as a “green light to federal courts to rewrite dozens of state election laws around the country” including laws requiring voters to date and sign a declaration, place their ballot in a secrecy envelope, and get their signature witnessed or notarized.
Norris stressed that such basic requirements for mail-in voting are “important election-integrity measures given the heightened risk of fraud posed by mail-in voting” and that lower courts have split on the meaning of the federal materiality statute.
Ari Savitzky, an ACLU lawyer representing the voters, urged the Supreme Court to stay out of the dispute, arguing that the court should maintain the status quo and allow the ballots –initially discounted due to a “trivial paperwork mistake” — to be counted.
“The handwritten date is so inconsequential that the Board of Elections accepted ballots where voters wrote any date whatsoever on the return envelope, even dates from decades ago,” Savitzky told the justices in legal papers. “The county clerk affirmed he would have accepted envelope dates from the future. Yet voters who mistakenly omitted the envelope date were disenfranchised,” he said. He noted that the Board of Elections is not supporting the application to freeze the appeals court decision.
The appeals court decision had already reverberated throughout the state.
Not only would it change the result of Ritter’s 2021 race, but it came down just days after Pennsylvania’s 2022 primary elections, several of which were decided by slim margins.
Indeed, McCormick is invoking the 3rd Circuit’s decision to argue that counties should count all undated ballots in his tight race.
John M. Gore, a lawyer for Oz, meanwhile filed a “friend of the court” brief at the Supreme Court supporting Ritter and criticizing the appeals court decision.
Oz’s attorney called the appeals court decision “thinly reasoned” and said it is now being “weaponized to undermine the apparent result of a statewide primary election for the Republican nomination to represent Pennsylvania in the United States Senate.”
He warned the justices if the appeals court decision stands it will erode public confidence and create “voter confusion.”
CNN’s Dan Merica contributed to this report.