Supreme Court OKs counting undated mail ballots in Pennsylvania

Justice Alito said it "could well affect the outcome of the fall elections."

June 9, 2022, 5:42 PM

The U.S. Supreme Court on Thursday gave the green light to counting undated mail-in ballots in a contested Pennsylvania local election, a move with potentially broader implications for close races in November's midterm elections.

Over the objection of three justices, the Court restored a federal appeals court ruling that said disqualifying ballots received on time but lacking a handwritten date on the return envelope would violate federal voting rights.

Pennsylvania state law requires that voters include a date next to the signature, even though mail ballots are typically postmarked and dated again by election officials when they are received. The appeals court concluded the absence of the handwritten date was an "immaterial" error.

The Supreme Court did not elaborate on its decision to allow counting to proceed, and it is not binding precedent. But it does suggest that a majority of justices support the view that discarding ballots over small administrative errors or omissions would harm the franchise.

PHOTO: County officials perform a ballot recount on June 2, 2022 in West Chester, Pa.
County officials perform a ballot recount on June 2, 2022 in West Chester, Pa.
Mark Makela/Getty Images

Justice Samuel Alito, in a dissent joined by Justices Clarence Thomas and Neil Gorsuch, said he would have stayed the appeals court ruling in order to review the merits of the dispute, which he said "could well affect the outcome of the fall elections."

Alito wrote that he believes the Third Circuit opinion is "very likely wrong."

"When a mail-in ballot is not counted because it was not filled out correctly, the voter is not denied 'the right to vote.' Rather, that individual’s vote is not counted because he or she did not follow the rules for casting a ballot," Alito wrote.

Pennsylvania has famously had a number of very close elections in recent years, in several cases decided by the counting of mail-in ballots with varying degrees of compliance with state voting regulations.

PHOTO: Protective fencing surrounds the U.S. Supreme Court building, May 24, 2022, in Washington, D.C.
Protective fencing surrounds the U.S. Supreme Court building, May 24, 2022, in Washington, D.C.
Chip Somodevilla/Getty Images

GOP Senate candidate David McCormick, who conceded to rival Dr. Mehmet Oz in his closely-watched Pennsylvania primary race last week, may have benefitted from the counting of undated mail-in ballots, which were ultimately discarded. He lost by 900 votes.

The court's decision most immediately benefits the Democratic candidate in a 2021 race for a seat on the Lehigh County Court of Common Pleas, Zachary Cohen. He trails David Ritter, a Republican, by 71 votes. State election officials say there are 257 undated mail-in ballots that will soon be counted to finalize results in the race.

The Supreme Court has been deeply divided over election disputes and voting rights in recent years, with today's decision highlighting differences among the justices and the kinds of political fights the court will likely face during a high-stakes election year.

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