Lehigh Times

The U.S. Supreme Court’s ruling earlier this week in Ritter v. Migliori upends an effort – at least temporarily -- to use the Materiality Provision of the Civil Rights Act to block the “enforcement of common sense mail ballot qualification requirements," says Lisa Dixon, executive director of the Lawyers Democracy Fund (LDF).

LDF is a public interest law firm focused on election law.

“Requirements under state law that voters must satisfy when casting a mail ballot––ballot date requirements, signature requirements, ballot return deadline requirements, etc.––are essential to ensure every ballot is lawfully cast,” Dixon told the Lehigh Times in an email. “But the 3rd Circuit (from where the case was appealed) applied the Materiality Provision to enjoin a requirement in Pennsylvania law that voters date their mail ballots, but this provision was never meant to apply beyond voter qualification requirements.”

U.S. Supreme Court | Philosophicalswag/Wikimedia Commons

The case stems from 257 undated mail ballots cast in November 2021 in Lehigh County in a race for three open seats on the Common Pleas Court. The Lehigh County Board of Elections ruled that the votes be counted, the reasoning that the failure to date the outer envelopes was a “technical error.”

David Ritter, a Republican candidate, appealed to state court – he was ahead of fourth-place candidate Democrat Zac Cohen by just 71 votes.

The Commonwealth Court, and then a federal district court, ruled that the ballots should not be counted, but in May the Third Circuit reversed those decisions.

Ritter appealed to the Supreme Court for an emergency ruling to block the Board of Elections from counting the ballots, but that appeal was denied in early June. Counting the undated ballots put Cohen up by five votes, and in late June, Ritter conceded the race.

The ruling hasn’t ended the controversy over whether to count undated ballots in Pennsylvania.

After the Supreme Court ruling, Pennsylvania’s Acting Secretary of State Leigh Chapman, a Democrat, issued a statement saying that the Department would not alter its guidance to the counties to count undated ballots for the upcoming election.

"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,” she said. “That guidance followed the most-recent ruling of the Pennsylvania Commonwealth Court (where Republican primary candidate David McCormick sued Mehmet Oz over undated ballots) holding that both Pennsylvania and federal law prohibit excluding legal votes because the voter omitted an irrelevant date on the ballot return envelope.”

State Rep. Seth Grove (R-York), who has championed election reform efforts in the General Assembly, released a statement Oct. 12 saying that Chapman’s reaction to the ruling is “another example of Democrats picking and choosing which laws and court rulings they want to follow and enforce."

“Just as we’ve seen in Philadelphia with District Attorney Larry Krasner, who has opted to not enforce certain gun laws, Chapman has chosen to turn a blind eye to the recent U.S. Supreme Court ruling on undated mail-in ballots,” Grove said.

Dixon said it was important to take note of what the Supreme Court did not include in its ruling.

“It does not preclude parties from trying to challenge election-related requirements under the Materiality Provision in future litigation, though they may not make the attempt in light of the Supreme Court's order, nor does it mean that Pennsylvania must have a dating requirement for absentee ballots,” she said.

“This issue will likely end up before courts in the future until the Supreme Court rules on the merits of the issue, and time will show whether future judges are willing to use an obscure provision of the Civil Rights Act to undermine election rules,” she added.