U.S. Supreme Court Justice Alito halts count of disputed mail-in ballots in Lehigh County 2021 judicial election
Also Tuesday, nine Lehigh Valley voters want rejected mail-in ballots counted in Democratic state Senate 14th District primary
U.S. Supreme Court Justice Samuel Alito Tuesday afternoon stopped an expected counting of 257 disputed mail-in ballots from a 2021 Lehigh County judicial election.
Alito issued what is known as a stay to prevent - at least temporarily - the U.S. Third Circuit Court of Appeals from ordering the tally of those ballots, which did not have the required handwritten date on outside envelopes.
The matter reached Alito after Allentown lawyer David Ritter, who was leading for the third and final seat on the Lehigh County Court, asked the Supreme Court to intervene on Friday. The request was directed to Alito, who hears emergency appeals from decisions by the Third Circuit Court of Appeals. The appeals court was ready to order that the ballots be counted.
Ritter wanted the Supreme Court to delay the count until he could present his arguments to it.
Reached for comment after the decision, Ritter said he understands Alito can direct the full Supreme Court to hear his case or the justice can give his legal team time to request that the court hear it.
The case has drawn national attention because it could affect races in the May 17 primary, especially the closely watched Republican contest for U.S. Senate, where Dr. Mehmet Oz has a roughly 900-vote lead over David McCormick. That contest is already in a state-required recount because of Oz’s narrow margin over McCormick.
Oz’s lawyers on Sunday filed a brief with the Supreme Court in support of Ritter.
“Yet Dr. Oz’s principal competitor, David McCormick, has invoked the [U.S. appeal] panel’s judgment in a Hail Mary effort to overturn the apparent result of that election,” the brief said.
Meanwhile, nine Lehigh Valley voters whose mail-in ballots were rejected because they lacked secrecy envelopes or arrived after the 8 p.m. May 17 deadline have filed a motion in the U.S. District Court of Eastern Pennsylvania seeking a temporary injunction to halt certification of the May 17 primary in Lehigh and Northampton counties.
The plaintiffs – Ruthann Bausch, Marcia Day Dondiego, Judith Reed, Rhoda Emefa Amedeku, Daniel Strohler, Sharon Strohler, Bernard Boakye, Lori Rieker and Lisa Danner – are among more than 260 voters in the newly drawn 14th Senate District who saw their mail-in ballots rejected over secrecy envelopes and arrival dates.
Besides a temporary injunction, the lawsuit seeks a hearing and asks that the rejected ballots be included in the 14th District vote count.
Not included among the plaintiffs is Tara Zrinski, who is 42 votes behind Nick Miller, an Allentown School Board member, in the Democratic primary in the 14th. Zrinski told Armchair Lehigh Valley that she has yet to concede the race.
As mail-in votes were being tabulated last week, Zrinski, a Northampton County commissioner, became alarmed over the number of ballots rejected over the lack of secrecy envelopes and late arrivals. She vowed to bring the matter to the public’s attention.
“I believe my role is [as} an advocate for disenfranchised voters,” she told Armchair Lehigh Valley. “I want to get to the bottom of this and assist in the challenge of this process that has obvious flaws.”
The lawsuit was filed by Allentown lawyer Matthew Mobilio. Defendants are the Boards of Elections in Lehigh and Northampton counties, where the 14th District is located, and Leigh Chapman, acting secretary of the Department of State, which oversees elections in Pennsylvania.
The voters, Mobilio wrote, allege the absence of the secrecy envelope — the inner envelope where completed ballots are supposed to go before being placed in a envelope for mailing — is immaterial to the integrity of the ballot, or any other important facet of the voting and tabulation process.
The filing also says that voters whose ballots arrived after 8 p.m. on May 17 had mailed them before the deadline.
Mobilio alleges “that the failure of the U.S. Postal Service to deliver ballots on time, and the failure of the Secretary of the Commonwealth to notify voters of the possibility of said delay are factors beyond the control of the voter and should not be an impediment to having their vote counted.”
In Ritter’s case, the issue involves 257 mail-in ballots in Lehigh County that did not contain the required handwritten date on the outer envelopes returned to the county. Ritter led Democrat Zachary Cohen by 71 votes.
Lehigh County’s Board of Elections was prepared to count those ballots after the November 2021 election, but Ritter attempted to block that count from occurring. He sued in county court, setting in motion a protracted legal case that, seven months later, is still unsettled and is now before the nation’s highest court.
Ritter lost his case in Lehigh County Court, where Judge Edward Reibman determined the ballots should be counted, but won an appeal before the Pennsylvania Commonwealth Court. Cohen then appealed to the Pennsylvania Supreme Court, which opted against hearing the case.
The ACLU, on behalf of five voters — Linda Miglori, Francis J. Fox, Richard E. Richards, Kenneth Ringer and Sergio Rivas — filed a federal lawsuit against Lehigh County in January. In March, Judge Joseph F. Leeson Jr. of the Eastern District of Pennsylvania determined the ballots should not be counted. The ACLU took the case to the federal appeals court, which agreed with the voters and issued its decision on May 20 and followed May 27 with its full opinion outlining reasons for the decision.
Ritter, in taking his case to the U.S. Supreme Court, wanted the court to put on hold the appeals court decision at least until June 2 to consider his request.
“Yet the Third Circuit has now gone where even the Pennsylvania Supreme Court wouldn’t,” Ritter’s legal team wrote in its filing on Friday. “For that same 2021 election, the Third Circuit has ordered Lehigh County to count over 250 undated ballots — enough to eliminate David Ritter’s lead three times over. Its decision adopts a novel interpretation of an obscure federal statute that would let federal courts set aside any state election law that they deem ‘immaterial.’ ”
In its response Tuesday, the ACLU wrote, “The ‘nail in the coffin’ in this case is the undisputed fact that obviously wrong envelope dates from decades past and even from the future were considered acceptable, while no date was not. … the remarkable fact that the content of the envelope date was concededly immaterial would control here — and limit the import of any judicial resolution to that peculiar set of facts.”
Cohen’s lawyer Adam Bonin of Philadelphia made a similar argument Tuesday in his response to Ritter’s request: “The date on which an ordinary mail-in voter casts a ballot is irrelevant to Pennsylvania’s statutory scheme, and nowhere in the ballot canvassing process is that date ever consulted by election board workers; rather a ballot is timely if it is received by 8 p.m. on Election Day.”
The Lehigh County Board of Elections, in a letter to the Supreme Court by assistant county solicitor Lucas J. Repka, takes no position in Ritter’s case.