WASHINGTON – The U.S. Supreme Court declared as moot a decision from the U.S. Court of Appeals for the Third Circuit, which counted 257 Lehigh County ballots missing the date on their outer envelopes in last November’s general election for a Lehigh County judgeship.
According to the Third Circuit decision issued May 27 in Ritter v. Migliori, 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.”
Finding to reverse the prior Third Circuit decision by a vote of 7-2, the U.S. Supreme Court issued the following statement along with its Oct. 11 order:
“The motion of Speaker of the Pennsylvania House of Representatives, Bryan Cutler, et al. for leave to file a brief as amici curiae is granted. The motion of Doctor Oz for Senate, et al. for leave to file a brief as amici curiae is granted. The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Third Circuit with instructions to dismiss the case as moot. Justice [Sonia] Sotomayor and Justice [Ketanji Brown] Jackson would deny the petition for a writ of certiorari,” per the high court.
Pennsylvania’s Acting Secretary of State Leigh M. Chapman issued the following statement in response to the U.S. Supreme Court order regarding undated mail ballots.
“Every county is expected to include undated 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.
“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. 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.”
Now, the Third Circuit ruling’s is unable to be cited as a precedent in the three states covered by that Court’s auspices – Pennsylvania, New Jersey and Delaware – to permit the counting of ballots with minor flaws, such as the voter failing to fill in the date.
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.
U.S. District Court for the Eastern District of Pennsylvania Judge Joseph F. Leeson Jr. ordered in June 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.
Those votes made Cohen victorious in the election over Ritter. He has since been sworn in and this new U.S. Supreme Court decision will not change the result of Cohen’s election.
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