U.S. Supreme Court throws out lower court ruling that undated vote-by-mail ballots must be counted

The U.S. Supreme Court on Tuesday threw out a lower court’s ruling that Pennsylvania’s dating requirement for mail-in ballots violated a federal voting rights law. 

The ruling, in which the high court vacated a May U.S. 3rd Circuit Court of Appeals decision without issuing an opinion, sets the stage for further litigation in state court over Pennsylvania’s vote-by-mail law, lawyers in the case said.

It does not change the outcome of the underlying 2021 election for Lehigh County judge, in which Democrat Zac Cohen defeated Republican David Ritter by five votes after disputed mail-in ballots returned without dates on their envelopes were counted.

Cohen’s attorney, Adam Bonin of Philadelphia, called the appeal by Republicans a procedural move because Cohen was sworn into office earlier this year.

In June, the Supreme Court denied a request to stop the ballots from being counted while it decided whether to take Ritter’s appeal allowing the Lehigh County elections board to certify Cohen as the winner.

Ritter’s lawyer, Joshua Voss, said he believes Ritter would have ultimately prevailed if the Supreme Court halted ballot counting while it decided the case.

“We think [Tuesday’s decision] reflects that the decision of the 3rd Circuit warranted further review and, but for the matter becoming moot, they would have granted that review and reversed the opinion on the merits,” Voss said.

Pennsylvania acting Secretary of State Leigh Chapman said during a virtual press conference Tuesday morning that the department was reviewing the decision and would advise counties accordingly.

Existing guidance from the Department of State instructs counties to count ballots that are missing a date or have the incorrect date, but Chapman said officials will evaluate and update directives as necessary.

In a statement issued Tuesday afternoon, Chapman said counties are “expected to include undated ballots in their official returns” for the November election.

“That guidance followed the most recent ruling of the Pennsylvania Commonwealth Court holding that both Pennsylvania and federal law prohibit excluding legal votes because the voter omitted an irrelevant date on the ballot return envelope,” she said. “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. 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.”

Pennsylvania’s mail-in balloting law, Act 77, brought the most significant changes in Pennsylvania elections in decades when it allowed voters to cast absentee ballots without a reason for not going to the polls. 

Previously, voting by mail was allowed only when a person was disabled, ill, or had plans to be away from home and could not vote in person. 

The law has been subject to repeated challenges since 2020 when it took effect. Candidates have waged court battles, in particular, over whether the law’s language stating that voters shall date the envelopes in which ballots are returned is a requirement for ballots to be valid.

In the 2020 presidential election, the Pennsylvania Supreme Court decided that voters should not be disenfranchised for the mistake of not dating the envelopes in that election, but that the provision should be enforced in future elections. 

After the Commonwealth Court ruled in December 2021 undated ballots could not be counted in the Lehigh County judicial election, a group of voters backed by the American Civil Liberties Union of Pennsylvania took the case to federal court. 

A U.S. District Court judge initially ruled in Ritter’s favor, but on appeal, the 3rd Circuit found the date requirement violated the Civil Rights Act’s materiality clause, which bans restrictions on ballot access that are not material to a voter’s qualifications.

“We are at a loss to understand how the date on the outside envelope could be material when incorrect dates — including future dates — are allowable but envelopes where the voter simply did not fill in a date are not,” Circuit Judge Theodore McKee wrote. “Surely the right to vote is ‘made of sterner stuff’ than that.”

Since then, the Commonwealth Court has twice ruled that undated ballots must be counted, first in a challenge by Republican U.S. Senate candidate David McCormick, who lost to eventual GOP nominee Dr. Mehmet Oz in the May primary election and then in the case of three counties where elections officials refused to count mail-in ballots without dates.

Judge Renee Cohn Jubelirer, who decided both Commonwealth Court challenges, found that Pennsylvania courts have consistently found the word “shall” in the Election Code means something is mandatory only when it is essential to the integrity of an election.

Voss said regardless of political affiliation, everyone should agree that election law must be fixed, certain, and uniformly applied. Pennsylvania’s election law has issues that still need to be resolved by the state and U.S. supreme courts, Voss said. 

House Republican Caucus spokesperson Jason Gottesman said the language of the Election Code clearly states that mail-in ballots must be dated.

“Instead of continuing to try to legislate through contradictory and confusing guidance documents and relying on conflicting court opinions, the administration would be better spending its time working on comprehensive Election Code changes that can resolve these sorts of outstanding issues through the normal process and also bring uniformity, accessibility, modernization, and security to our elections,” Gottesman said in a statement.

An omnibus election reform bill introduced by Rep. Seth Grove, R-York, who is chairman of the House State Government Committee, where election laws are shaped, is unlikely to advance before this session ends. Gov. Tom Wolf vetoed a similar piece of legislation last year.

For the upcoming election on Nov. 8, Bonin said the best thing voters who choose to vote by mail can do is carefully read and follow all of the instructions that come with their ballots.

“Don’t leave anything to chance,” Bonin said.