Supreme Court throws out lower court ruling that allowed undated ballots to be counted in Pennsylvania judicial race

By Devan Cole, CNN

The Supreme Court on Tuesday threw out a lower court ruling that said undated mail-in ballots in a Pennsylvania judicial race had to be counted, a decision that could eventually impact the commonwealth’s closely watched US Senate race.

The justices vacated a May 2022 ruling from the 3rd US Circuit Court of Appeals that ordered 257 undated ballots be counted in a Lehigh County judicial race. They instructed the lower court to dismiss the case as moot. Justices Sonia Sotomayor and Ketanji Brown Jackson said they would have declined to take the case.

Though the high court’s action does not impact the outcome of the 2021 race — in which David Ritter, the Republican state judicial candidate, lost to Democratic rival Zachary Cohen — it could eventually play a role in potential election-related disputes in high-profile races as it means the lower court’s ruling in favor of counting the undated ballots cannot be used as precedent in the three states within the court’s jurisdiction: Pennsylvania, New Jersey and Delaware.

When Ritter asked the justices to step into the case earlier this year, his emergency request was blocked, with Justices Samuel Alito, Clarence Thomas and Neil Gorsuch in dissent. Alito wrote at the time that if the lower court’s ruling is “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.”

The court’s action on Tuesday was supported by some high-profile Republicans in the state, including Dr. Mehmet Oz, Pennsylvania’s GOP nominee for US Senate who is locked in a tight race with Democrat John Fetterman, the current lieutenant governor.

Oz wrote that “millions of Americans … who will vote in November and in future elections deserve to do so under the rules duly enacted by legislatures, not under the cloud of the Third Circuit’s ‘very likely wrong’ decision in this case.”

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.

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.

Ritter appealed the decision to the Supreme Court, which declined his emergency petition earlier this year before taking up the case on Tuesday and siding with him in the dispute.

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CNN’s Ariane de Vogue and Tierney Sneed contributed to this report.