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The Supreme Court has declined to block a lower court decision that allowed the counting of undated ballots in a Pennsylvania judicial election.
While the dispute, decided Thursday, centered on a local 2021 judicial contest, the high court’s decision could have further implications for mailed ballot requirements in the midterm elections in November.
The court’s brief did not provide a rationale for the decision, though Republican-appointed Justices Clarence Thomas and Neil Gorsuch joined a dissent authored by Justice Samuel Alito.
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“When a mail-in ballot is not counted because it was not filled out correctly, the voter is not denied the right to vote,” Alito wrote. “Rather, that individual’s vote is not counted because he or she did not follow the rules for casting a ballot. Casting a vote, whether by following the directions for using a voting machine or completing a paper ballot, requires compliance with certain rules.”
The matter was brought to the justices by David Ritter, a Republican state judicial candidate in Lehigh County who argued the undated ballots should not be counted in his race because there exists an obscure state law deeming they should not.
Ritter asked the high court to block a ruling from the 3rd U.S. Circuit Court of Appeals that ordered the ballots to be counted, which may have handed the race to his Democratic opponent, Zachary Cohen.
Alito disputed the 3rd Circuit’s interpretation of federal law as requiring the undated mail ballots to be counted despite that state law instructing they should not be counted.
“A State’s refusal to count the votes of these voters does not constitute a denial of ‘the right to vote,'” Alito wrote. “Even the most permissive voting rules must contain some requirements, and the failure to follow those rules constitutes the forfeiture of the right to vote, not the denial of that right.”
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When Ritter sought the Supreme Court’s input late last month, Republican Pennsylvania Senate candidate Mehmet Oz filed a “friend of the court” brief supporting the judicial candidate’s claims. Oz has since won the GOP primary in the state after his primary rival David McCormick conceded earlier this month.
“The Third Circuit’s interpretation broke new ground, and at this juncture, it appears to me that that interpretation is very likely wrong,” Alito wrote. “If left undisturbed, it 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.”
