The U.S. Supreme Court on Tuesday vacated a federal appeals court decision that had allowed undated mail ballots to be counted in Pennsylvania, injecting new uncertainty into an issue that could affect thousands of votes in next month’s elections.
The decision, which vacated a key ruling from the Third Circuit Court of Appeals, will open the door for new lawsuits over an issue that has become a consistent political and legal fight over the last two years. Republicans are likely to file new litigation arguing that undated mail ballots should be rejected, while Democrats will continue to fight for those ballots to be counted.
The ruling involves a case about just 257 undated mail ballots from Lehigh County in last year’s November election.
But its impact may be far greater.
Pennsylvania election law requires voters to write a date on the outer mailing envelope when returning their mail ballots. State courts had held over the last two years that the date requirement means undated ballots must be rejected.
But in May, a federal appeals court sent shockwaves through the primary election vote count when it ruled that the practice of rejecting undated mail ballots violates federal voting rights law. Because any date on a ballot envelope is accepted, the Third Circuit Court of Appeals ruled, the date is a technicality — and throwing out ballots on a technicality runs afoul of what’s known as the “materiality provision” of the Civil Rights Act.
That prompted an immediate fight between the U.S. Senate campaigns of Republicans Mehmet Oz and David McCormick, with McCormick filing a new lawsuit in state court to have undated ballots counted. While that lawsuit was separate from the Lehigh County case, it cited that case and adopted its general argument. Commonwealth Court President Judge Renée Cohn Jubelirer agreed, saying undated mail ballots should be counted.
After a handful of counties refused to count undated mail ballots in the primary, the Pennsylvania Department of State, which oversees elections, sued to have those ballots counted in the final certified totals.
Cohn Jubelirer again agreed, this time laying out an extensive opinion for why undated mail ballots should not be rejected, citing both state and federal law.
But Republicans are likely to challenge that argument now that the U.S. Supreme Court has vacated the Third Circuit ruling.
