Justice Samuel Alito Blocks Appeals Court Ruling on Counting Undated Ballots in Pennsylvania

Associate Justice Samuel Alito sits during a group photo at the Supreme Court in Washington, Friday, April 23, 2021. (Erin Schaff/The New York Times via AP, Pool)
Erin Schaff/The New York Times via AP, Pool

WASHINGTON, DC – Supreme Court Justice Samuel Alito issued a stay order Tuesday blocking the decision of a federal appeals court that required the counting of undated ballots in Pennsylvania elections.

A state lawsuit challenging a 2021 local election in Lehigh County, Pennsylvania, involved voters who submitted mail-in or absentee ballots without including the date. Pennsylvania law requires that the voter both sign and date his or her ballot.

The matter eventually ended up in federal court because one provision of federal voting-rights law, 52 U.S.C. § 10101, purports to limit what sort of information a state can require on a state ballot. A federal district judge ruled in favor of the state law.

The U.S. Court of Appeals for the Third Circuit reversed. A three-judge panel consisting of two Democrat-appointed judges and one Republican-appointed judge held that the relevant provision of state law violated federal law. The Philadelphia-based appeals court accordingly ordered that the undated ballots be counted.

While a local election in the Keystone State may not typically be a topic of national news, this ruling also has significant implications for other races. There are hotly contested races for governor and U.S. senator in the state. Currently, the top two candidates for the Republican nomination in the U.S. Senate race, Mehmet Oz and David McCormick, are only a few hundred votes apart. And of course, Pennsylvania is a critical state these days in presidential elections as well.

An election worker continues the process of counting ballots for the Pennsylvania primary election, Wednesday, May 18, 2022, at the Mercer County Elections Board in Mercer, Pa. Vote counting continues as Republican candidates Dr. Mehmet Oz and David McCormick are locked in a too-early-to-call race for Pennsylvania's hotly contested Republican nomination for an open U.S. Senate seat.

An election worker continues the process of counting ballots for the Pennsylvania primary election, Wednesday, May 18, 2022, at the Mercer County Elections Board in Mercer, Pennsylvania. (Keith Srakocic/AP)

On Tuesday, Alito issued a stay blocking the Third Circuit’s decision. The matter is likely to be referred to the full Supreme Court now to determine whether to continue the stay. If that stay is extended by a majority of the court, it should be expected that the applicant in the lawsuit will promptly file a petition for a writ of certiorari to ask the Supreme Court to take up the case for argument later this year.

It is unclear at this point when the Supreme Court will resolve the matter. This stay is only temporary. The justices could issue what is called a per curiam opinion either on the application for a stay or once a “cert petition” has been filed. But conservative Justice Amy Coney Barrett, for one, has expressed concern about the court deciding serious legal issues quickly as part of the court’s emergency docket, expressing a preference for the court to have the benefit of full legal briefing and oral argument when deciding weighty matters.

Under the Purcell doctrine, federal judges are increasingly reluctant to alter election rules as an election looms near. That would counsel either in favor of resolving the matter quickly or pushing it past the 2022 election to have it settled well in advance of 2024.

In the meantime, what remains clear is that how an important state to the national political landscape decides which party won could hang in the balance in a close race. Additional action is expected in the coming days.

The application is Ritter v. Migliori, No. 21A772 in the Supreme Court of the United States.

Ken Klukowski is an attorney who practices election law. He formerly served in the White House and Justice Department and is a Breitbart News contributor.

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