A lower federal court ruling allowing the counting of undated mail-in ballots in Pennsylvania was vacated Tuesday by the U.S. Supreme Court, reintroducing ambiguities in the November General Election.
The Third Circuit Court of Appeals ruled in May in the case Ritter v. Migliori that 257 mail-in ballots lacking a date on the envelope could be counted in a Lehigh County election in November of 2021. Pennsylvania election law requires that a voter date the outside of the envelope when returning mail-in ballots, and state courts had ruled the undated ballots must be rejected.
The lower court ruled that invalidating the undated ballots would violate the Civil Rights Act that is meant to ensure minor ballot errors do not prevent someone from voting.
But in a 7-2 summary disposition issued Tuesday, the Supreme Court ordered the Third Circuit’s decision vacated and remanded it back to the court “with instructions to dismiss the case as moot.”
Justices Sonia Sotomayor and Ketanji Brown Jackson said in the summary disposition that they would have denied the petition without vacating the Third Circuit’s ruling.
The Supreme Court also allowed several amicus curiae parties to file arguments in the case, including Lancaster County Rep. Bryan Cutler (R) and Doctor Oz for Senate, the campaign apparatus of Mehmet Oz. Cutler’s amicus brief, which was joined by Kerry Benninghoff, the majority leader of the Pennsylvania House of Representatives, Jake Corman, the president pro tempore of the Pennsylvania Senate and Kim Ward, the majority leader of the Pennsylvania Senate, argued that the Third Circuit’s decision should be vacated.
“The Third Circuit’s decision has upended carefully constructed election administration procedures – procedures that were previously upheld by Pennsylvania state courts and the United States District Court,” Cutler’s brief said. “Should the decision be left in place, it is unclear how Pennsylvania will be able to conduct an orderly election in November – especially when by the letter of the decision of the court below, any regulation of vote by mail would be deemed ‘immaterial’ should it not directly relate to voter eligibility.”
Leigh Chapman, Pennsylvania’s acting Secretary of State, issued a statement Tuesday following the Supreme Court’s order, saying every county is expected to continue to include undated mail-in ballots in the results of the Nov. 8 General Election “consistent with the Department of State’s guidance.”
“Today’s order from the U.S. Supreme Court vacating the Third Circuit’s decision on mootness grounds was not based on the merits of the issue and does not affect the prior decision of Commonwealth Court in any way,” Chapman said in her statement. “It provides no justification for counties to exclude ballots based on a minor omission, and we expect that counties will continue to comply with their obligation to count all legal votes.”