WASHINGTON – The U.S. Supreme Court denied an application for stay pending certiorari in a federal lawsuit first brought in Allentown, concerning whether or not 257 Lehigh County ballots missing the date on their outer envelopes will be officially counted in last November’s general election.
In so doing, the nation’s high court did away with its own May 31 administrative stay of a decision on an emergency application in Ritter v. Migliori by the U.S. Court of Appeals for the Third Circuit made four days earlier, on May 27.
According to the Third Circuit decision, the 257 disputed ballots must be counted – which led to David Ritter, a Republican candidate for a judgeship in the Lehigh County Court of Common Pleas, to file an emergency stay application to the U.S. Supreme Court.
If the disputed ballots were counted, Ritter would lose the election – and so, he filed his emergency application to the U.S. Supreme Court.
“The Third Circuit has now gone where even the Supreme Court of Pennsylvania wouldn’t. For that same 2021 election, the Third Circuit has ordered Lehigh County to count over 250 undated ballots – enough to eliminate David Ritter’s lead three times over. Its decision adopts a novel interpretation of an obscure federal statute that would let federal courts set aside any state election law that they deem ‘immaterial,” Ritter’s counsel wrote in the emergency application.
“It splits with the Pennsylvania courts’ interpretation of that same federal statute in this same election. And it orders Lehigh County to do what the state courts ordered it not to do. It also changes the rules after the election ended, in favor of five voters who inexplicably waited months to file a follow-on federal suit. And it risks changing the outcome not only in Ritter’s election, but also in ongoing contests over Pennsylvania’s just-completed primaries and the general election in November.”
The administrative stay, instituted by its Justice Samuel Alito on May 31, gave the Court additional time to consider the legal issues at stake.
Three members of the U.S. Supreme Court, including Alito, dissented from the Court’s decision to deny the stay pending certiorari. Alito, alongside fellow Justices Clarence Thomas and Neil Gorsuch, discerned that concerns pertaining to how the prior Third Circuit decision would affect Pennsylvania’s general elections this November were well-founded.
“The Third Circuit’s interpretation broke new ground, and at this juncture, it appears to me that that interpretation is very likely wrong. 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,” Alito said.
“I would therefore enter a stay pending certiorari and advise that any petition for certiorari and brief in opposition should be filed expeditiously. 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.”
Background on the Case Originating in a Pennsylvania Federal Court
Linda Migliori, Francis J. Fox, Richard E. Richards, Kenneth Ringer and Sergio Rivas first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on Jan. 31 versus the Lehigh County Board of Elections. All parties are of Lehigh County.
(Since the time of filing, Lehigh County judicial candidates Zac Cohen and Ritter were named as an intervenor plaintiff and an intervenor defendant, respectively.)
In the election in question, six candidates were competing for three open spots on the bench of the Lehigh County Court of Common Pleas.
The initial suit detailed that the five named plaintiffs found themselves among 257 Lehigh County voters who did not write a date next to their signatures, on their mail-in ballots’ return envelope.
According to Pennsylvania state law, mail ballots are required to be signed and dated on the outside envelope, with precedent finding if the ballots are not signed, they are to be rejected.
The initial vote count saw a razor-thin margin of 74 votes between Cohen and Ritter.
Besides asking the federal court to delay the certification of the votes, the initial litigation wanted all 257 votes counted as part of the final total – otherwise, the plaintiffs argued that invalidating the mail-in ballots was tantamount to “disenfranchisement” and that would “cause irreparable harm.”
The Lehigh County Board of Elections voted unanimously on Nov. 15 to allow the ballots to be counted, a decision which Lehigh County Court of Common Pleas Judge Edward Reibman affirmed.
However, on Jan. 3, the Commonwealth Court ruled 2-1 to throw out the 257 mail-in ballots in question. Four weeks later, it found that the state law permitting mail-voting was unconstitutional.
The Lehigh County Board of Elections answered the complaint on Feb. 11.
“The Board of Elections admits the ballots at issue were not counted based a facial defect consisting of the voter’s failure to date the ballot-return envelope. The Board denies, however, that the ballots are otherwise valid and/or do not contain another defect, as the ballots were immediately removed and placed in sealed envelope upon the missing date being discovered. At this time no statement or position can be made relative to the validity of the remaining ballots,” per the Board.
The same day, both sides filed motions for summary judgment.
“The undisputed record in this case makes clear that plaintiffs are eligible, registered voters in Lehigh County, who properly applied for and completed their mail-in ballots, signed the declaration on the outer envelopes, and timely returned their ballot package to the County,” according to the plaintiffs’ motion.
“The lack of a handwritten date on plaintiffs’ and 252 other voters’ mail-in-ballot-return envelopes is the only reason their ballots will not be counted. Even interpreting the facts in the light most favorable to the defendants Board and Ritter, disenfranchisement of 257 voters based on a ministerial handwritten-date requirement that is immaterial and serves no practical purpose violates the Civil Rights Act and the First and Fourteenth Amendments to the U.S. Constitution.”
Meanwhile, the defense countered that no such violation of the plaintiffs’ constitutional rights was in play.
“The interest, as determined by both the Supreme Court of Pennsylvania and the Commonwealth Court of Pennsylvania, of ensuring a fair and honest election, and the manner in which Pennsylvania has elected to address this concern is minimal and purely mechanical...as a result, the burden placed upon mail-in voters under Pennsylvania law to include the date on the outer envelope of their ballot does not constitute an undue burden under the First or Fourteenth Amendments to the United States Constitution and is justified by Pennsylvania’s weighty interests in fraud prevention and ensuring the integrity of its elections,” countered the defendants’ respective motion.
“Indeed, where, as here, Pennsylvania’s Election Code imposes only ‘reasonable, nondiscriminatory’ restrictions on the right to vote, strict scrutiny is not required. Further, a showing there are important regulatory interests that justify the limited restrictions imposed, must result in a determination that no violation of First and Fourteenth Amendment rights has occurred. Therefore, plaintiffs cannot demonstrate the requisite element of a viable claim under this count as a matter of law.”
The District Court first granted summary judgment for Ritter and the Lehigh County Board of Elections on March 16, leading to an appeal.
At the Third Circuit level, Justices Theodore C. McKee, Joseph A. Greenaway Jr. and Paul Matey unanimously found that the 257 ballots should be counted, and such an effort to leave them uncounted was tantamount to disenfranchisement and violated the Materialty Provision of the Civil Rights Act, as the plaintiffs claimed.
“In Pennsylvania, a voter is qualified if, by Election Day, ‘they are 18 years old, have been a citizen for at least one month, have lived in Pennsylvania and in their election district for at least 30 days, and are not imprisoned for a felony conviction.’ In other words, the requirement is material if it goes to determining age, citizenship, residency, or current imprisonment for a felony. Appellees cannot offer a persuasive reason for how this requirement helped determine any of these qualifications. And we can think of none,” McKee said.
McKee added that the Materialty Provision of the Civil Rights Act ensured that otherwise qualified voters would not find themselves disenfranchised by “meaningless” requirements that had no bearing on their voting eligibility.
“Ignoring ballots because the outer envelope was undated, even though the ballot was indisputably received before the deadline for voting serves no purpose other than disenfranchising otherwise qualified voters. This is exactly the type of disenfranchisement that Congress sought to prevent,” McKee said.
As a result of the U.S. Supreme Court’s ruling, U.S. District Court for the Eastern District of Pennsylvania Judge Joseph F. Leeson Jr. ordered Friday that the prior ruling in his Court of summary judgment on March 16 was vacated and that the Lehigh County Board of Elections would count the 257 undated ballots at issue.
Reggie Shuford, Executive Director of the ACLU of Pennsylvania, who represented the plaintiffs in this action, offered a statement on the case.
“Voters have historically been disenfranchised by barriers that are not relevant to a person’s eligibility to vote or their choice to participate in elections. That’s why the Civil Rights Act prohibits disenfranchising eligible voters for paperwork errors that are not relevant to their eligibility, like handwriting a date on the return envelope of their mail ballot,” Shuford said.
“Our voter clients and all 257 people in Lehigh County impacted by this issue deserve to have their ballots counted, and we are grateful that reason and the law have prevailed. It’s time to count these votes. In future elections, this issue could impact thousands of voters in Pennsylvania. We are hopeful that this ruling diminishes the likelihood of disenfranchisement of voters for what is a simple human error.”
U.S. Supreme Court case 21-A-772
U.S. Court of Appeals for the Third Circuit case 22-1499
U.S. District Court for the Eastern District of Pennsylvania case 5:22-cv-00397
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com