By Tierney Sneed,CNN
The Supreme Court declined Thursday to step in to block a lower court decision that allowed the counting of undated ballots in a local Pennsylvania judicial race.
Justice Samuel Alito wrote a dissent that was joined by Justices Clarence Thomas and Neil Gorsuch in the case, which had been closely watched when it appeared possible that it could have influenced the commonwealth’s Republican US Senate primary. That election, however, was settled before the Supreme Court weighed in.
The matter was brought to the justices by David Ritter, a Republican state judicial candidate in Lehigh County who was arguing that undated mail ballots should not be counted in his race. He asked the court to halt a ruling from the 3rd US Circuit Court of Appeals that ordered the ballots counted, which could have handed the race to his Democratic opponent Zachary Cohen. The dispute concerned an obscure federal law that bars the denial of an individual’s right to vote based on a paperwork error that is not material to determining the voter’s qualification.
In his dissent, Alito expressed scorn toward the 3rd Circuit’s interpretation of the federal law as requiring that the undated mail ballots be counted, despite state law saying they should not.
“The Third Circuit’s interpretation broke new ground, and at this juncture, it appears to me that that interpretation is very likely wrong,” Alito wrote. “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 compared voters whose ballots are discarded because they failed to date their mail ballots to those who can’t vote because they show up at their polling place at the wrong time or day.
“A State’s refusal to count the votes of these voters does not constitute a denial of ‘the right to vote,'” Alito wrote. “Even the most permissive voting rules must contain some requirements, and the failure to follow those rules constitutes the forfeiture of the right to vote, not the denial of that right. “
Alito also criticized the 3rd Circuit’s conclusion that the omission of a date on a mail ballot was not material to the voter’s qualifications to vote. In the case, the ACLU — which was representing voters seeking to have the undated ballots counted — argued that the omission of the date was immaterial to preventing fraud, especially since mail ballots with obviously incorrect dates, such as decades in the past or even in the future, would still be counted.
In a statement after the Supreme Court’s order, ACLU attorney Ari Savitzky, who argued the case before the 3rd Circuit, defended the appellate court’s reasoning.
“Voters may not be disenfranchised for a minor paperwork error like this one,” Savitzky said. “We are thrilled for these voters that their ballots can finally now be counted, consistent with the requirements of federal law.”
When Ritter sought the Supreme Court’s intervention late last month, Pennsylvania Senate candidate Mehmet Oz filed a friend-of-the-court brief in support of Ritter. According to Oz’s brief, his then-primary rival David McCormick had been using the appellate court’s order in the local judicial election dispute to request that local election officials and state courts order undated ballots be counted in his contest against Oz. McCormick has since conceded the Senate GOP primary to Oz, and a recount found Oz defeated McCormick, according to the commonwealth’s acting secretary of state.
The legal issues before the court in the undated mail ballot case, which were technical and concerned a specific federal statute, are separate than those the court will be considering as it decides whether to grant a blockbuster North Carolina redistricting case. The court will be considering at a private conference next week whether to take up the North Carolina redistricting case, which raises the so-called independent state legislature theory that argues against state court review of state election law.
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CNN’s Ariane de Vogue contributed to this report.