Another year, another Pennsylvania election that could result in judges solving a mail-in ballot snafu. This time it’s the Republican Senate race between Mehmet Oz and David McCormick. The hopeful news is a stay from Judge Samuel Alito on Tuesday, suggesting the Supreme Court of Justice could finally tell it to stop rewriting the election rules mid-game.
The official tally says Mr. Oz leads by 955 ballots. Still, Mr. McCormick wins about seven absentee ballots for every five for Mr. Oz. As usual, many absentee ballots were turned down for one reason or another. Allegheny County has more than 1,500 in the GOP and Democrat primaries. The legal war involves ballots on which the voter forgot to write the date by hand. Team McCormick believes that includes about 900 Republicans statewide.
Pennsylvania law states that voters must “complete, date and sign” the Election Form. The state judiciary has ruled that dating is mandatory. But last month, in a dispute over a 2021 judicial election, the Third Circuit Court of Appeals ruled that undated ballots are valid if they arrive on time. The court cited the Civil Rights Act, which states that public officials “shall not deny a person the right to vote” based on a clerical error that is “not material in determining whether such person qualifies under state law.”
This is a good opportunity for the Supreme Court to make it clear that judges should not rush into the counting room without good reason. The Third Circuit had not even written a public opinion statement when it entered judgment in this 2021 case. The timing, three days after the Pennsylvania primary, suggests plans to reverse the way ballots were counted.
As for merits, Pennsylvanians who forgot to date their ballots were not denied the right to vote. They received absentee ballots like everyone else who applied for one. But they failed to cast valid votes under neutral de minimis rules. The date field is not always superfluous. In 2020, the Pennsylvania Supreme Court tried to get officials to count late ballots without a postmark unless evidence showed they were mailed late. With their HR1 law, the Democrats want to enforce such a policy nationwide.
If a voter has moved, a handwritten date could provide evidence that the ballot was filled out after the change of residence. The Third Circuit rejected these arguments primarily because the Pennsylvania State Department had told local officials that “there is no basis for rejecting a ballot because the ‘incorrect’ date is on the envelope.” What about the simple meaning of the law? “We cannot understand how the date on the outer cover could matter,” the Third Circuit said, “if incorrect dates…including future dates– are permissible.”
The Pennsylvania State Department’s guidance isn’t what lawmakers mean when they say voters must “date” their absentee ballots. If the Third Circuit’s decision stands, any candidate who narrowly loses in November could go to court and demand that a subset of the rejected absentee ballots be included in the final recount.
Wisconsin requires absentee ballots to have witness signatures proving the voter’s identity. But the witness must also write his address. Is that “stuff”? Postal votes in Texas are verified using ID numbers. If they match, the signature is “presumed” valid. Does this mean that unsigned ballot papers must now be counted? Can Pennsylvania still throw away ‘naked’ ballots that arrive without non-disclosure envelopes? Allegheny County turned down 658 last month.
The US Supreme Court has missed its chance to discipline Pennsylvania courts during and after the 2020 election. Only luck prevented a catastrophe. Pennsylvania received 10,097 late ballots, 669 with no clear postmarks. Had they been counted in black letters, in violation of state law, and had that marked the difference between President Biden and four more years of President Trump, the political scene would have resembled something out of the Book of Revelation.
It didn’t matter as Mr. Trump lost the election by three states and Pennsylvania by 80,555 votes. But if you get beginner’s luck at Russian Roulette, don’t play again. The path to clean elections with public trust is to vote by the book. The Supreme Court can order subordinate judges to stop rewriting electoral laws, especially after votes have been cast.
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Appeared in the print edition June 3, 2022 as The Supreme Court’s Mail-Ballot Mulligan.
https://www.wsj.com/articles/the-supreme-courts-mail-ballot-mulligan-samuel-alito-pennsylvania-senate-race-election-mehmet-oz-david-mccormick-11654203564 The Supreme Court’s Mail-Ballot Mulligan in Pennsylvania