US Supreme Court allows Pennsylvania election officials to count undated mail-in ballots

The US Supreme Court Thursday rejected an emergency appeal that would have prevented the counting of 257 mail-in votes in an election for a Pennsylvania judgeship. The votes, which could tip the scale in the election, are contested on the grounds that their envelopes were not dated in violation of state election law.

The election, involving a seat on the Lehigh County trial court, took place last November and currently has a Republican candidate, David Ritter, just 71 votes ahead of a Democratic challenger, Zac Cohen. In November the county board of elections voted to include the ballots, reasoning that they were received on time and that their violation of state law was a mere technicality. Ritter, however, challenged their decision in state court where an appeals court ruled that the undated ballots could not be counted.

A group of voters whose ballots are among those undated brought their case to federal court, arguing that Pennsylvania’s dating requirement violates a voting provision of the federal Civil Rights Act (CRA). The US Court of Appeals for the Third Circuit agreed with the voters, ruling that not counting undated ballots violates the “materiality requirement” of the CRA, which prohibits states from excluding votes for reasons that are not material to the voter’s qualifications. Ritter then brought the present emergency appeal to the Supreme Court.

As is customary, the court’s rejection of the emergency appeal was unsigned and without an explanation. But a dissenting opinion by Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch, argues that the Third Circuit’s interpretation of the CRA is erroneous. Moreover, Alito voiced concern that their interpretation could influence Pennsyvania’s November 2022 elections, which include a Governor and Senate race, as well as those for numerous House seats.

Notwithstanding the court’s rejection, Alito noted that if a “petition for certiorari and brief in opposition should be filed expeditiously,” 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.”