The United States Supreme Court issued an emergency stay in the ongoing debate over undated mail ballots while it decides whether to hear an appeal in the case.
Justice Samuel A. Alito Jr. issued a two-sentence order that stays a ruling from the U.S. Court of Appeals for the Third Circuit, which ruled last week that such ballots should be counted in a contested 2021 judicial race – Linda Migliori v. Lehigh County Board of Elections.
“UPON CONSIDERATION of the application of counsel for the applicant (David Ritter) and the responses filed thereto, IT IS ORDERED that the mandate of the United States Court of Appeals for the Third Circuit, case No. 22-1499, is hereby stayed pending further order of the undersigned or of the Court.”
Alito oversees the Third Circuit, which includes Delaware, New Jersey, Pennsylvania, and Virgin Islands, as well as the Fifth Circuit (Louisiana, Mississippi, Texas).
The Third Circuit’s decision said that mail-in ballots that were received on time but lacked a required date on the outer envelope should be counted.
“Congress intended § 1983 to be a channel for private plaintiffs to enforce the Materiality Provision of the Civil Rights Act. That provision was created to ensure qualified voters were not disenfranchised by meaningless requirements that prevented eligible voters from casting their ballots but had nothing to do with determining one’s qualifications to vote. 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. This is exactly the type of disenfranchisement that Congress sought to prevent.”
It becomes significant in the primary race for the Republican Senate nomination between Mehmet Oz and Dave McCormick. Oz holds a 902-vote advantage over McCormick as the Commonwealth undertakes a mandatory recount.
The McCormick campaign has filed a lawsuit in the Commonwealth Court of Pennsylvania to have these undated ballots – which were received at local election offices prior to 8 PM on Election Night – counted. The Oz campaign, along with the Pennsylvania Republican Party, has taken an alternate position, asking that they not be counted in the final total.
“The Third Circuit’s thinly reasoned and erroneous decision — which addressed a county judicial election conducted more than six months ago — 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,” Oz’s lawyers wrote in the brief to the Supreme Court.
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 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.