There has been much debate recently in Pennsylvania about whether mail-in ballots that are missing a required date should be counted or excluded if the ballot was received on time and there are no other disqualifying errors.
A majority of the Supreme Court on Thursday declined to intercede in a case involving exactly that and, in the view of the Wall Street Journal‘s editorial board, has now set the stage for “anarchy” in future elections with regard to state rules for mail-in ballot eligibility.
Justice Samuel Alito, joined by Justices Clarence Thomas and Neil Gorsuch, dissented from that decision, though, and explained why it was necessary and perhaps even inevitable that the high court would eventually need to address the issue, arguably sooner rather than later.
Should mail-in ballots lacking a date be counted?
Central to the case is a November 2021 judicial election in Pennsylvania’s Lehigh County in which candidate David Ritter held a 71-vote lead over the next candidate but has yet to be declared the victor due to the question of what to do with 257 mail-in ballots in that race that had been received on time but lacked a required date, according to SCOTUSblog.
State courts ruled that the ballots shouldn’t be counted, but a group of voters whose ballots were therefore rejected took the issue to federal court and argued that their right to vote had been denied in violation of a federal civil rights statute, and while a district court had disagreed, the 3rd Circuit Court of Appeals sided with the voters and ordered the ballots to be counted.
Ritter then took the matter to the Supreme Court and requested that a stay to block the appeals court ruling be issued, but that request was denied.
The right to vote isn’t “denied” if basic election rules aren’t followed
In his dissent, Justice Alito wrote that he would have granted the stay because, in his view, the 3rd Circuit’s interpretation of the federal civil rights statute in question was “very likely wrong,” and that, “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.”
That statute, 52 U.S.C. Sec. 10101(a)(2)(B), states: “No person acting under color of law shall … deny the right of any individual to vote in any election because of an error or omission on any record or paper relating to any application, registration, or other act requisite to voting, if such error or omission is not material in determining whether such individual is qualified under State law to vote in such election.”
Alito wrote, “When a mail-in ballot is not counted because it was not filled out correctly, the voter is not denied ‘the right to vote.’ Rather, that individual’s vote is not counted because he or she did not follow the rules for casting a ballot.”
Despite the rejection of the requested stay, the Justice also seemed to encourage Ritter to “expeditiously” file a “petition for certiorari and brief in opposition” and that, “If that is done, the Court will be in a position to grant review, set an expedited briefing schedule, and if necessary, set the case for argument in October.”
Can’t change the rules in the middle of the game
Taking Alito’s dissent into account, the Journal’s editorial board concluded, “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,” the board added, and we couldn’t agree more.