UPDATE: On Tuesday, Oct. 11, the Pennsylvania acting secretary of state released a statement that counties are “expected to include undated ballots in their official returns for the Nov. 8 election.” The secretary notes that the “order from the U.S. Supreme Court…does not affect the prior decision of [the] 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.” This statement is consistent with the Department of State’s latest mail-in ballot guidance.
WASHINGTON, D.C. — On Tuesday, Oct. 11, the U.S. Supreme Court vacated (meaning voided) a decision by the 3rd U.S. Circuit Court of Appeals that required Pennsylvania to count mail-in ballots that were previously rejected for lacking handwritten dates next to voters’ declaration signatures on the outer ballot envelopes. Today, in a single paragraph order, the Supreme Court granted certiorari (meaning it said it would hear the case) and remanded (meaning sent back) the case to the 3rd Circuit to be dismissed as moot (meaning that there is no longer an issue for the court to resolve). Ultimately, today’s decision does not necessarily change the current status of counting undated mail-in ballots in Pennsylvania as a state court held in August that the undated ballots may not be rejected and doing so would violate Pennsylvania law and the Materiality Provision of the Civil Rights Act. Additionally, today’s ruling means that the 3rd Circuit’s decision that allowed for the counting of undated mail-in ballots does not apply to any of the other states or territories in the 3rd Circuit: Delaware, New Jersey and the U.S. Virgin Islands.
This lawsuit took a long and winding path to the Supreme Court. The lawsuit was originally filed in January of this year on behalf of five voters in Lehigh County who, along with 252 other voters, had their mail-in ballots rejected because their outer ballot envelopes lacked handwritten dates next to their voter declaration signatures. Because of this, these 257 ballots were not counted in an election to select a judge to the Court of Common Pleas. The voters originally filed a lawsuit in state court, which ruled that the ballots shouldn’t be counted, before filing this lawsuit in federal court alleging that not counting these ballots violates the Civil Rights Act of 1964 and First and 14th Amendments because ballots are rejected for an “immaterial technical defect” and this unduly burdens voters. In March, the district court ruled in favor of the Lehigh County Board of Elections, ruling that provision of the Civil Rights Act under which the plaintiffs brought their claim does not create a private right of action, meaning that the plaintiffs cannot sue under this provision. This decision was then appealed to the 3rd Circuit, which held that the Civil Rights Act does create a private right of action (which means individuals and organizations can bring lawsuits) and the undated ballots should not be rejected for an “immaterial technical defect.” A Republican candidate, who lost his election for a Lehigh County judgeship, filed an emergency application to pause the 3rd Circuit’s ruling, which the Supreme Court denied in June. He then filed a petition for writ of certiorari asking the Supreme Court to review the merits of the case. On Oct. 11, the Supreme Court vacated the 3rd Circuit’s ruling and remanded (meaning sent back) the case to the 3rd Circuit to be dismissed as moot.
While today’s decision could have implications for counting mail-in ballots in Pennsylvania in future elections, as it currently stands, undated mail-in ballots will continue to be counted in Pennsylvania due to election guidance and state court rulings. The Republican intervention in this lawsuit is part of a larger Republican assault on mail-in voting in the commonwealth and beyond. Moreover, this challenge is indicative of a larger effort by Republicans to not count valid ballots.