Northampton County to count disputed mail-in ballots
Lehigh judicial candidate ponders appeal of Friday's federal court decision.
Northampton County will count undated, mail-in ballots as it tallies the final results for the May 17 primary Tuesday, Northampton County Lamont McClure confirmed on Monday.
The decision comes days after a three-judge panel from the U.S. Third Circuit Court of Appeals issued a judgment saying that Lehigh County must count the 257 mail-in ballots that were rejected last fall because they lacked handwritten dates on return envelopes.
“The 3rd Cir. declared the date ‘immaterial,’ ” McClure said in a tweet. “We follow the law.”
Meanwhile, the candidate whose 2021 election as a Lehigh County judge hangs in limbo over the 257 undated, mail-in ballots said Monday he may ask the U.S. Supreme Court to intervene in the protracted case that led to Northampton’s decision.
Candidate David Ritter, who has a 74-vote lead ahead of his nearest challenger, said he is waiting to review an expected opinion from a three-judge panel from the U.S. Third Circuit Court of Appeals, which on Friday said the disputed ballots should be counted.
“I’m discussing that with my legal team,” he said. “We want to review that opinion … to see exactly where the foundation of the basis is there.”
He added that asking the U.S Supreme Court to review the case is a likely possibility.
The fate of the undated, mail-in ballots has sweeping implications for races in the Lehigh Valley and across the state where counting is still underway for provisional, military ballots and mail-in ballots from the May 17 primary.
In the State’s 16th Senate GOP primary, Jarrett Coleman, an airline pilot who won a seat on the Parkland School Board last fall with an anti-mask, anti-CRT platform, led long-time incumbent Pat Browne by 17 votes. (17,019 votes to Browne’s 17,002, according to state tallies as of 4 p.m. Monday.)
In the 14th Senate Democratic primary, Nick Miller, an Allentown School Board member, was ahead of Tara Zrinski, a Northampton County commissioner, by 101 votes (8,819 versus 8,718.)
In Northampton County, Zrinski said, there are 380 signed but not dated Democratic ballots and 95 Republican ballots. Miller said there are 53 undated envelopes from both parties in Lehigh County. Not all of those ballots are in the 14th District.
In the GOP primary for the 7th Congressional District, where business owner Kevin Dellicker conceded to Lisa Scheller, a former Lehigh County commissioner, on Friday, 2,240 votes stand between them. (Scheller’s 36,661 to Dellicker’s 34,421.)
And in the critical GOP primary for the U.S. Senate, Mehmet Oz leads David McCormick by 992 votes (418,665 to 417,673). Late Monday afternoon, McCormick filed a lawsuit in Commonwealth Court seeking to force Pennsylvania’s 67 counties to count all undated, mail-in ballots that were returned on time, the Washington Examiner reported. The lawsuit cited the federal appellate court’s Friday decision in the Lehigh County ballot case.
The Pennsylvania Department of State said the deadline for counties to report unofficial ballot tallies is 5 p.m. Tuesday. Statewide, about 11,300 Democratic and 5,400 Republican absentee and mail ballots were outstanding as of 2 p.m. Monday. Those figures include rejected ballots, according to a department press release.
So far, the three-judge panel has yet to file a full opinion. Andy Hoover, director of communications for the ACLU of Pennsylvania, said Lehigh County and Ritter have five days from the issuance of the opinion to ask for a hearing before the full U.S. Court of Appeals for the Third Circuit or the U.S. Supreme Court. Lehigh County could not be reached for comment.
Ritter, a Republican candidate for judge in the 2021 election, challenged a decision by the Lehigh County Board of Elections to count 257 mail-in ballots that did not have the required date on the return envelopes. All of the disputed ballots had been received by the county by the deadline.
A June 2021 advisory to county election officials from the Department of State, which oversees elections in Pennsylvania, said a missing date on the return envelope does not disqualify a ballot.
The state based that guidance on a 2020 state Supreme Court ruling that determined undated ballots could be counted in the 2020 general election, according to the ACLU lawsuit.
For the third and final open seat on the Lehigh County Court, Ritter, a Republican, finished 74 votes ahead of Democrat Zachary Cohen, the nearest challenger.
Cohen could surpass Ritter if the 257 ballots were counted because Democrats tend to use mail-in ballots more than Republican voters.
Lehigh County was set to count the undated ballots in the November 2021 election until Ritter filed an appeal in Lehigh County Court.
Lehigh County Judge Edward Reibman decided the ballots were valid and should be counted. Ritter appealed the case to Commonwealth Court, which ruled in his favor.
Cohen then appealed to the state Supreme Court, which declined to hear his case, which meant that the ballots should not be counted.
The ACLU, on behalf of the five — Linda Miglori, Francis J. Fox, Richard E. Richards, Kenneth Ringer and Sergio Rivas — filed a federal lawsuit against Lehigh County in January.
In denying their appeal, Leeson said they lacked standing to sue because it’s up to the U.S. attorney general to handle civil rights cases in voting matters.
He also said the handwritten date requirement does not infringe on their First and Fourteenth Amendment rights and further said an undated envelope could potentially lead to fraud if someone else filled it in with a wrong date.
After Leeson’s ruling, the voters received an emergency injunction on March 20, which prevented Lehigh County from certifying results for three judicial seats in Lehigh County Court, which was scheduled for the next day.
Oral arguments before the Third Circuit panel took place on May 18.
In filing their case, the voters argued that the Civil Rights Act prohibits disqualifying a person’s vote if the reason for disqualification is “not material in determining whether such individual is qualified under State law to vote.
They also say the county’s failure to notify the voters of the errors violates the due process clause of the Fourteenth Amendment.
Further, the voters say the date requirement is “superfluous” and an undue burden that restricts their right to vote, in violation of the First and Fourteenth Amendments.
After learning of Friday’s judgment, Ari Savitzky, senior staff attorney, ACLU Voting Rights Project, said, “The right to vote cannot be denied based on minor paperwork errors that do not speak to a voter’s eligibility. Today’s important ruling vindicates that basic, common-sense principle, which Congress enshrined in federal law in the 1964 Civil Rights Act.”