The U.S. Supreme Court overturned an appeals court's decision on mail-in ballots which altered the direction of a Pennsylvania judicial race.
The decision was first made in May by the 3rd U.S. Circuit Court of Appeals. The court required ballots submitted by mail that did not have a date on the envelopes to be counted in the 2021 judicial election. Democrat Zac Cohen was able to win his race for the office of a common pleas judge within Lehigh County because undated ballots could be counted.
Cohen will continue to hold his position and will continue to serve, however, there appears to be some confusion about the Supreme Court ruling since the general election is just a few days away.
Pennsylvania Acting Secretary of State Leigh Chapman said every county is still expected to include those 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 prohibits excluding legal votes because the voter omitted an irrelevant date on the ballot return envelope,” Chapman said in a statement.
Chapman also said on Tuesday morning on a pre-arranged press conference she is “currently reviewing the decision.”
“On our website right now, the current guidance is for counties to count ballots that are missing a date or have the wrong date,” Chapman said. “As far as the impact on what happened with the Supreme Court, I’m not able to comment further. But what I can say is that we will evaluate and update guidance as necessary.”
This is likely to be unwelcome news for the governor of Pennsylvania’s office as he is a Democrat. Joshua Voss is a lawyer that represents the Republican candidate who lost to Cohen in the Lehigh County judicial race, David Ritter. He claims the decision only places the law back into the control of the state as it was prior to the appeals court decision.
“The Department of State certainly should update their guidance,” Voss said. “But at the end of the day, elections are administered by counties and counties will need to assess what the state of the law was.”
He also stated that, in the event that Pennsylvania counties aren't required to comply with the latest decision, there may be lawsuits filed in the near future if races are too close to be called.
“I don’t know about ‘likely’ because it would require a close race. So, possible? Yes. Likely? I don’t know. Remember, these ballots made the difference in Ritter’s race, which is why the case existed,” Voss said.
Pennsylvania allowed only limited use of absentee mail-in ballots until 2019, when a state law OK’d them for voters who did not otherwise qualify from a list of acceptable excuses.
A lawsuit by Republican lawmakers challenging the mail-in voting law is pending in state court, while in August the state Supreme Court upheld the law against a separate challenge.
Additional guidance provided by the office of the Secretary of State is in the works, however with only a short amount of time left before the midterm elections, this could be another political boondoggle in Pennsylvania.