In what should be a major win for election integrity advocates, the Supreme Court tossed out a lower court ruling that had permitted undated mail-in ballots to be counted against the law in Pennsylvania — but the Commonwealth’s secretary of state has other ideas.
On Tuesday, the court overruled the Philadelphia-based 3rd Circuit Court of Appeals, which had said that not counting undated ballots would violate a provision of the 1964 Civil Rights Act regarding minor ballot errors.
The 3rd Circuit ruling had come in response to a challenge from David Ritter, who in 2021 lost his election to the Lehigh County Court of Common Pleas to a Democrat by only five votes after 257 undated ballots were counted. Pennsylvania law, however, requires voters to date their mail-in ballots on their outer envelopes. The 3rd Circuit determined this requirement was “immaterial” to a person’s voting eligibility.
While in June the U.S. Supreme Court denied Ritter’s appeal to block the 3rd Circuit ruling — with Justice Samuel Alito writing in his dissent that the ruling “could well affect the outcome of elections this year” — the Supreme Court on Tuesday vacated the case, tossing the lower court’s decision and thus ruling in favor of Ritter. While Justices Sonia Sotomayor and Ketanji Brown Jackson said they would have denied Ritter’s appeal and left the 3rd Circuit ruling in place, the majority decision means the 3rd Circuit’s ruling can no longer act as election precedent in Pennsylvania, Delaware, and New Jersey, the states under the jurisdiction of the lower court.
But immediately after the court’s decision was made public, Pennsylvania’s Acting Secretary of State Leigh M. Chapman released a statement saying the court’s ruling does not affect the decision of the 3rd Circuit “in any way.”
“Today’s order from the U.S. Supreme Court vacating the Third Circuit’s decision on mootness grounds was not based on the merits of the issue and does not affect the prior decision of Commonwealth Court in any way,” Chapman wrote. “It provides no justification for counties to exclude ballots based on a minor omission, and we expect that counties will continue to comply with their obligation to count all legal votes.”
This directive by Chapman will only result in more chaos and confusion for voters, poll workers, and election clerks, plus likely inconsistencies between how different localities handle erroneous ballots. Pennsylvania’s mail-in ballots for this election cycle already contain wording that reads “today’s date required” and clear instructions for voters to “sign and date” their ballots.
This kind of blatant flouting of election law is nothing new in Pennsylvania. Back during the 2020 election, then-Secretary of State Kathy Boockvar issued guidance that did not comport with Pennsylvania’s election code.
As a result of Chapman’s statement, some of the Commonwealth’s 67 counties will follow her directive while others will follow state law and clear ballot instructions, meaning the inconsistencies and irregularities that plagued the 2020 election show no signs of stopping.
“No provision of the Pennsylvania Constitution or statute or rule allows an unelected bureaucrat to change or ignore a duly passed law,” Pennsylvania election lawyer Linda A. Kerns told The Federalist. “No one in Pennsylvania voted for Acting Secretary Leah Chapman yet her ‘guidance’ defies the Election Code written by the legislature and signed by the governor. Here we go again in Pennsylvania — changing the rules of the game on a whim.”