The U.S. Supreme Court invalidated a lower appeals court decision Tuesday regarding how rules for mail-in ballots had been applied in a Pennsylvania election, adding an element of uncertainty about voting procedures four weeks ahead of the state’s high-stakes elections for governor and U.S. Senate.
Pennsylvania’s top-ranking elections official said the decision was under review and that guidance to counties about how to handle such ballots would be updated if necessary.
The justices vacated a decision in May by the 3rd U.S. Circuit Court of Appeals that had said mail-in ballots without a required date on the return envelope had to be counted in a 2021 Pennsylvania judge race.
The lower court had said state election law’s requirement of a date next to the voter’s signature on the outside of return envelopes was “immaterial.” That lower court had said it found no reason to refuse counting the ballots that were set aside in the Nov. 2, 2021, election for common pleas judge in Lehigh County.
Those votes were enough to propel the Democrat, Zac Cohen, to victory in the race. He has since been sworn in, and the new U.S. Supreme Court decision is not expected to reverse the results of Cohen’s election contest.
In the latest decision, the justices ruled 7-2 that the Third Circuit must “dismiss the case as moot.”
Joshua Voss, a lawyer who represents the losing judicial candidate in the Lehigh County race, Republican David Ritter, said the effect of the new high court ruling is that state law goes back to where it had been.
“The Department of State certainly should update their guidance,” Voss said. “But at the end of the day, elections are administered by counties and counties will need to assess what the state of the law was.”
In a previously scheduled call on election procedures with reporters on Tuesday morning, acting Secretary of State Leigh Chapman said she had just been informed of the ruling and that “we’re reviewing that decision and we’ll provide guidance to counties accordingly.” Chapman works in the administration of Gov. Tom Wolf, a Democrat.
“On our website right now, the current guidance is for counties to count ballots that are missing a date or have the wrong date,” Chapman said. “As far as the impact on what happened with the Supreme Court, I’m not able to comment further. But what I can say is that we will evaluate and update guidance as necessary.”
Voss had argued to the Supreme Court that the Third Circuit ruling was already being cited in other cases but should be declared moot.
He said it’s possible that more litigation over the undated envelopes might occur if there is a close race in November and a candidate wants to seek a court review.
“I don’t know about ‘likely’ because it would require a close race. So, possible? Yes. Likely? I don’t know. Remember, these ballots made the difference in Ritter’s race, which is why the case existed,” Voss said.
Pennsylvania allowed only limited use of absentee mail-in ballots until 2019, when a state law OK’d them for voters who did not otherwise qualify from a list of acceptable excuses.
More than 2.5 million Pennsylvanians voted by mail during 2020′s presidential election, most of them Democrats, out of 6.9 million total votes. Chapman said Tuesday that more than 1.1 million absentee and mail-in ballots have been requested for the fall General Election.
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