Supreme Court ruling on undated Lehigh ballots leaves door open to more lawsuits
State says count undated ballots in November
The U.S. Supreme Court Tuesday dismissed a case involving undated ballots in a Lehigh County judicial election from 2021 but offered no clarification whether undated ballots should be counted in the future.
The brief order does not affect the outcome of that judicial race, which was decided in June, seven months after the election.
Democrat Zachary Cohen was elected county judge by five votes over Republican David Ritter when undated ballots were finally counted following a decision by the U.S. appeals court for the Third Circuit.
After the outcome was resolved, Ritter continued his case at the Supreme Court, which led to Tuesday’s order. The Supreme Court order effectively nullified the appeals court opinion as a precedent because the judicial election had been decided.
Tim Benyo, Lehigh County’s chief clerk for registration and elections, said he could not comment yet on whether Tuesday’s development means the county can count undated ballots in November.
But Acting Commonwealth Secretary Leigh M. Chapman Tuesday reaffirmed her department’s position, outlined after a recent Commonwealth Court decision in a different legal case, that undated ballots should be counted.
“Every county is expected to include undated ballots in their official returns for the Nov. 8 election, consistent with the Department of State’s guidance. 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.
“[Tuesday’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.”
The ACLU of Pennsylvania, which brought a lawsuit on behalf of five Lehigh County voters that all undated ballots should be counted, agreed.
“The court did not say that the Third Circuit’s decision was wrong, or otherwise address the merits of the case. Rather, it decided that because the ballots had already been counted and the election certified, the case was moot and any further appeal could not be heard,” Ari Savitzky, ACLU senior staff attorney, said in a statement.
“As for November, it remains clear that, under both Pennsylvania state law and federal law, timely mail ballots where a voter merely forgets to handwrite an inconsequential date on the outer envelope must be counted. Nothing about today's procedural decision changes that.”
Ritter felt vindicated by the Supreme Court’s order.
"I am very pleased with the decision of the United States Supreme Court to vacate the prior decision of the 3rd Circuit Court of Appeals,” he said in a statement. “While this will not change the status of the 2021 judicial race in Lehigh County, I am hopeful that no candidate will ever have to go through a situation like this again. I offer my sincere thanks to my team of attorneys led by Cam Norris and Josh Voss, who never stopped fighting for me.”
Asked about what the decision means for the future of counting undated ballots, he said the issue will likely be back in court.
“I think it’s going to be litigated again,” Ritter said in an interview.
Ritter’s legal team, in a Supreme Court filing Sept. 9, warned of possible chaos in the November elections if the justices did not decide whether undated ballots should continue to be counted.
That could “spawn unfortunate … consequences” and “disrupt the November elections. … That warning turned out to be a massive understatement. In the intervening months, the Third Circuit’s decision has created an outright ‘constitutional crisis’ in Pennsylvania,” the legal team wrote.
Commonwealth Court is hearing a case that could invalidate the state’s no excuse, mail-in voting law.
Origins of case
The state Legislature, which is controlled by Republicans, passed a bill that expanded voting options by allowing no-excuse, mail-in voting starting in the 2020 primary election. Gov. Wolf, a Democrat, signed Act 77 into law.
Among several provisions, the law required voters to date the outer envelope of ballots.
In the county judicial election in November 2021, the third open seat on the court remained in doubt and came down to undated ballots. Ritter led Cohen by 71 votes, but 257 voters failed to write a date on the outer envelope of their ballots. The county had received all of those ballots on time.
After Ritter learned the county Election Board planned to count those ballots, he asked the county court to order the county to not count them.
However, Judge Edward Reibman determined the ballots should be counted, which set in motion a protracted legal battle in state and federal courts. Ritter appealed to the state Commonwealth Court, which agreed with him. Cohen then appealed to the state Supreme Court, which opted against hearing the case, effectively agreeing with Commonwealth Court.
Next, the ACLU, on behalf of the five voters — Linda Miglori, Francis J. Fox, Richard E. Richards, Kenneth Ringer and Sergio Rivas — filed its federal lawsuit in January to require that the county count the ballots. In March, Judge Joseph F. Leeson Jr. of the U.S. Eastern District Court of Pennsylvania rejected the ACLU’s request.
The ACLU then took the case to the U.S. Third Circuit Court of Appeals, arguing that not counting the 257 ballots for such a minor omission disenfranchised voters and violated the Civil Rights Act. The court agreed with the ACLU in May.
Then Ritter asked the U.S. Supreme Court to temporarily block the count, leading Justice Samuel Alito to delay any count pending further court review. But on June 9, the full court, in a 6-3 vote, declined to hear the case. The county counted the disputed ballots, and Cohen picked up 76 more votes than Ritter to win the judicial seat by five votes.
The six justices in the majority did not explain their decision. However, Alito, with Justices Clarence Thomas and Neil Gorsuch joining him, wrote a dissenting opinion that foreshadowed what was to come.
He said the issue of undated ballots must be decided before Pennsylvania conducts its elections in November.
“I would agree with that decision [to count the votes] were it not for concern about the effect that the Third Circuit’s interpretation of [the state’s mail-in voting law] may have in the federal and state elections that will be held in Pennsylvania in November,” Alito wrote.
Marc Elias, a lawyer and founder of the voting rights advocacy group Democracy Docket, on a Twitter Space conversation Tuesday discussed the Supreme Court’s order, saying he would not be surprised if more lawsuits are filed.
“I think this will embolden some of those counties to not count these ballots, even though I think the weight of authority is that they still have to. And it would not surprise me if … Pennsylvania has an opportunity in one or more of these cases to resolve this issue.”
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