The United States Supreme Court has invalidated a lower appeals court decision regarding mail-in ballots that changed the course of a judiciary race in Pennsylvania.
The original decision was rendered back in May by the 3rd U.S. Circuit Court of Appeals. It required mail-in ballots that were missing a mandatory date on the return envelope to be counted in a 2021 judicial race. Democrat Zac Cohen ended up winning his race for common pleas judge in Lehigh County because undated ballots were allowed to be counted.
Cohen will retain his office, but there seems to be a bit of confusion surrounding the Supreme Court ruling given the general election is mere weeks away.
Pennsylvania Acting Secretary of State Leigh Chapman said every county is still expected to include those ballots in their official returns for the Nov. 8 election, consistent with the Department of State’s guidance.
“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 said in a statement.
On Tuesday morning, Chapman also said on a pre-scheduled press call that her office was “currently reviewing the decision.”
“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.”
Given that Pennsylvania’s governor is a Democrat, this is certain to be unwelcome news to his administration. Joshua Voss is a lawyer representing the Republican candidate who lost to Cohen in the Lehigh County judicial race, David Ritter. He says the ruling only puts the law back in the hands of the state, where it had been before the appeals court ruling.
“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.”
He went on to say, in the case that Pennsylvania counties aren’t compelled to comply with the new ruling, there could be new lawsuits in the future if some races are too close to call.
“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.
A lawsuit by Republican lawmakers challenging the mail-in voting law is pending in state court, while in August the state Supreme Court upheld the law against a separate challenge.
More guidance from the Secretary of State office is pending, but with so little time before midterms, this could turn into another electoral boondoggle for Pennsylvania.