They arrived in time for counting, but the envelopes were missing one thing aEUR”, a handwritten date.
According to the secretary-of-state’s office, 860 undated postal ballots from Pennsylvania Republican voters have been seized in a legal battle over the tight GOP primary election for a U.S. Senate seat.
This is the latest twist in a long-running dispute in the key swing state about what to do with return envelopes containing ballots that have not been handwritten next to the signatures of voters.
These controversial ballots could have ripple affects on the election in November, and beyond.
Since the outbreak of the coronavirus pandemic, there has been intense scrutiny about the technicalities involved in casting ballots. GOP state legislators threatened to impeach Philadelphia’s election officials last year if they didn’t reverse their original decision to count undated votes.
The past two years have seen a lot of litigation at both the state and federal levels. This has made it difficult for local election officials in Pennsylvania to keep up with the latest rulings as well as the guidance of the state’s top electoral official. Leigh Chapman, the acting Pennsylvania Secretary, is currently serving this role.
Chapman ordered a recount of the votes in the state for the race headed by Dr. Mehmet Oz, the TV celebrity doctor, and David McCormick (a former CEO of an investment firm).
On Tuesday afternoon, Oz led McCormick by less than 1,000 votes.
These two frontrunners are now heading to state court in dispute over whether handwritten dates that were not included on ballots should be counted. The Republican National Committee and Republican Party of Pennsylvania support Oz’s decision not to count them, signaling disagreement in the GOP over undated ballots. McCormick has been leading among the counted mail votes.
Chapman advised local election officials in the state to disregard undated ballots while they finalize the May 17 primary results.
U.S. Supreme Court Justice Samuel Alito directed that Tuesday’s lower federal court ruling be rescinded while the high court awaits formal appeal.
Here are some other things you should know:
According to Pennsylvania state law, yes, voters must “fill out, date, and sign” a declaration on an official envelope to return mail-in ballots.
However, the date requirement has been challenged in numerous court battles. This has raised the question of whether a person’s vote is invalidated if they miss a date handwritten.
Trump’s reelection campaign challenged the counting of thousands upon thousands of undated ballots, which were received on-time and contained no evidence of fraud. Nicole Ziccarelli, a Republican state Senate candidate in Pennsylvania, challenged the count in Philadelphia.
After a flood of mail-in votes during the pandemic, the state’s Supreme Court ruled that the undated ballots would be counted in 2020. The majority opinion of the Supreme Court stated that although not including a date handwritten on the back of the return envelope technically violates state law, it doesn’t “entitle the wholesale disenfranchisement to thousands of Pennsylvania voters.”
Justice David Wecht, effectively the tiebreaker on the divided court, issued a separate opinion stating that undated ballots should not be counted for future elections but in 2020.
“I can’t say with any confidence that diligent electors were sufficiently informed as to the consequences of disqualification,” Wecht wrote. He also stated that it would be unfair to penalize voters for incidents of systemic growth pains.
David Ritter, a Republican candidate for the Pennsylvania Lehigh County judgeship, challenged the 2021 counting of 257 undated votes. The case was not heard by the state Supreme Court, which allowed the lower court to rule: The undated ballots shouldn’t be counted, the Commonwealth Court ruled in January. It cited in part Wecht’s 2020 opinion.
The American Civil Liberties Union of Pennsylvania filed a federal lawsuit for a group of Lehigh County residents whose undated ballots had been disqualified later in January. ACLU lawyers claimed that not tallying undated votes violates the Civil Rights Act. This law prohibits denial of a person’s vote for any reason “not material”.
A three-judge panel from the 3rd U.S. Circuit Court of Appeals ruled in favor of the ACLU. Circuit Court of Appeals ruled for the ACLU-backed voters, overturning a lower court ruling and ordering the counting of undated ballots in the Lehigh County election of 2021.
The 3rd Circuit panel released their opinion on May 27. It noted that Jonathan Marks, the state’s deputy secretary to elections and commissions, confirmed that a handwritten date cannot be used to determine a voter’s eligibility. Additionally, the Lehigh County Board of Elections had incorrectly counted ballots.
U.S. Circuit Judge Theodore McKee wrote for the panel.
Ritter’s attorneys requested the U.S. Supreme Court on May 27 to temporarily suspend the ruling of the 3rd Circuit while Ritter prepares to appeal the lower court’s decision.
Every vote counts in a race close to the Oz-McCormick contest. The court’s decision to allow undated ballots in the recount could determine who is up against the Democratic nominee, Pennsylvania Lieutenant Governor. John Fetterman in November
The results of the count are expected by June 8. On Tuesday, the attorneys representing both GOP Senate frontrunners appeared before Commonwealth Court to hear McCormick’s emergency request for an Order requiring undated ballots be counted.
