The Supreme Court’s Mail-Vote Anarchy If Pennsylvania counts undated ballots, what else is up for grabs?
The Supreme Court has whiffed again on enforcing clear election laws. On Thursday, over conservative dissents, the Justices allowed the federal Third Circuit Court of Appeals to mandate that Pennsylvania count mail ballots that voters neglected to date. What ballot requirement might a judge let slide next? Apparently we won’t find out until the lawyers get busy after the November elections.
The legal dispute here involves a 2021 judicial race in Lehigh County. Republican David Ritter has a 71-vote lead. There are 257 mail ballots that arrived by the deadline, yet voters submitted them without handwriting a date. Mr. Ritter says tallying them could flip the outcome. The Pennsylvania Supreme Court, no less, has ruled that undated ballots are invalid, because state law unambiguously says voters must “fill out, date and sign” the declaration.
The Third Circuit’s justification for squashing that law is the Civil Rights Act, which says officials can’t “deny the right of any individual to vote” based on a paperwork error that “is not material in determining whether such individual is qualified under State law.” Mr. Ritter asked for a stay from the Supreme Court, which the majority denied without comment.
Justice Samuel Alito dissents, joined by Justices Clarence Thomas and Neil Gorsuch. “When a mail-in ballot is not counted because it was not filled out correctly, the voter is not denied ‘the right to vote,’” he says. “Rather, that individual’s vote is not counted because he or she did not follow the rules.” He adds that it’s akin to what might happen if a voter goes to the wrong polling place or mails a ballot back to an incorrect return address.
It’s hard to see where the Third Circuit’s interpretation stops. “A ballot signed by a third party and a ballot with a typed name rather than a signature would have to be counted,” Justice Alito says. Or what about Pennsylvania’s rejected “naked” ballots, which arrive without the privacy sleeve that state law requires? What about missing witness addresses, which Wisconsin law demands? What about unsigned ballots?
“If left undisturbed,” Justice Alito says, the Third Circuit’s view “could well affect the outcome of the fall elections, and it would be far better for us to address that interpretation before, rather than after, it has that effect.” Exactly. The majority’s dereliction means that any candidate who narrowly loses in November will have an obvious move: sue to demand that rejected ballots be tallied under the Civil Rights Act.
To run smoothly and keep public trust, elections need clear rules, especially in polarized times. Lower judges rewrote ballot laws on the fly in 2020, and the Supreme Court refused to step in. President Trump used that ambiguity to bolster his claims of mass fraud. You’d think the country would have learned a lesson. Justice Alito is right. Nothing good comes from making up voting rules in the middle of the game.
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