Chapman: Future undated ballots should still be counted following SCOTUS ruling

The U.S. Supreme Court on Tuesday vacated a lower court ruling from earlier this year that ordered mail-in ballots that lack a date to be counted, though the move by the nation’s high court is expected to have little impact on this year’s midterm elections in Pennsylvania.

The case at the heart of the Supreme Court’s order concerned 257 undated mail-in ballots cast in Lehigh County’s 2021 elections for common pleas judgeships. In May, the United States Court of Appeals for the Third Circuit ordered that the 250-plus ballots be counted by the county, with Judge Theodore McKee arguing that throwing out undated ballots would disenfranchise voters. 

“Ignoring ballots because the outer envelope was undated, even though the ballot was indisputably received before the deadline for voting serves no purpose other than disenfranchising otherwise qualified voters,” McKee wrote in a May 27 opinion. 

However, the Supreme Court’s action on Tuesday effectively voided the case, and the high court directed that the case be dismissed as moot. The order has no bearing on the results of the 2021 elections in Lehigh County, according to Adam Bonin, an attorney involved in the case.

The case was originally pursued by David Ritter, an attorney and candidate seeking a seat on the Lehigh County Court of Common Pleas in 2021. Ritter, who ultimately lost, appealed a 2021 decision by the Lehigh County Board of Elections to count undated ballots, which set the case in motion.

Ritter officially conceded in June of this year, saying he would not seek a recount or object to certification of the election results, according to The Morning Call. 

Ari Savitzky, a senior staff attorney with the American Civil Liberties Union, said in a statement that the court’s decision was procedural in nature and that it did not make any decision about the merits of the case. 

“This morning, the Supreme Court set aside the Third Circuit precedent in the Migliori v. Ritter case on purely procedural grounds,” Savitzky said. “The court did not say that the Third Circuit’s decision was wrong, or otherwise address the merits of the case. Rather, it decided that because the ballots had already been counted and the election certified, the case was moot and any further appeal could not be heard.”

Republicans pushed back against the significance of the Supreme Court’s ruling. Jason Gottesman, a spokesperson for the House Republican Caucus, said the state’s election laws state that mail-in ballots include a date. 

“The plain language of the Pennsylvania Election Code and the legislative intent is clear: ballots must be dated. Instead of continuing to try to legislate through contradictory and confusing guidance documents and relying on conflicting court opinions, the administration would be better spending its time working on comprehensive Election Code changes that can resolve these sorts of outstanding issues through the normal process and also bring uniformity, accessibility, modernization, and security to our elections,” Gottesman said in a statement. 

Gov. Tom Wolf’s administration took a different view. Leigh Chapman, Pennsylvania’s acting secretary of state, said Tuesday that the court’s decision does not change how counties should approach undated ballots in November’s midterm elections, which include contests for governor, U.S. Senate and state legislative seats. 

Chapman said mail ballots that lack dates should be counted, as long as they comply with guidance sent out by the Wolf administration. 

“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,” Chapman said in a statement. “That guidance followed the most recent ruling of the Pennsylvania Commonwealth Court holding that both Pennsylvania and federal law prohibit excluding legal votes because the voter omitted an irrelevant date on the ballot return envelope.”

Chapman echoed Savitzky, suggesting that the court’s decision “provides no justification for counties to exclude ballots based on a minor omission.” She added that the Department of State expects “that counties will continue to comply with their obligation to count all legal votes.”