Alito delays counting of undated ballots in Pennsylvania

Justice Samuel A. Alito Jr. on Tuesday put a hold on counting some challenged ballots in Pennsylvania while the Supreme Court continues to review a lower court’s decision that they be tallied.

The administrative stay Alito issued involves a unanimous decision of a three-judge panel of the U.S. Court of Appeals for the 3rd Circuit. It said that mail-in ballots that were received on time but lacked a required date on the outer envelope should be counted. Alito is the justice who receives emergency applications from the 3rd Circuit.

The panel’s decision involved a local judge’s race in Lehigh County. But it is significant because of the too-close-to-call primary for the Republican Senate nomination involving Mehmet Oz and David McCormick. McCormick, who trails Oz by fewer than 1,000 votes, has filed a lawsuit in state court to require that such “undated ballots” be counted.

The state’s requirement is that mail-ballot voters “fill out, date and sign” a form declaration on the outer envelope used to return ballots. But the federal judges said not counting the votes of those who did not provide a date violated federal civil rights law because the requirement was immaterial to the voters’ qualifications. There are no indications of fraud, the ballots were received by the state’s deadline and election officials noted they would have counted ballots with the wrong date but not those with no dates at all, the judges said.

“We are at a loss to understand how the date on the outside envelope could be material when incorrect dates — including future dates — are allowable but envelopes where the voter simply did not fill in a date are not,” Judge Theodore McKee wrote. “Surely, the right to vote is made of sterner stuff than that.”

Oz filed a brief supporting judicial candidate David Ritter. “The Third Circuit’s thinly reasoned and erroneous decision — which addressed a county judicial election conducted more than six months ago — is now being weaponized to undermine the apparent result of a statewide primary election for the Republican nomination to represent Pennsylvania in the United States Senate,” Oz’s lawyers wrote in the brief to the Supreme Court.

The winner of the GOP primary will face Lt. Gov. John Fetterman (D) in the general election, a crucial race for both parties hoping to win control of the Senate in November. Democrats view the race to replace retiring GOP Sen. Patrick J. Toomey as their best chance of flipping a seat in an otherwise difficult political year for the party.

Former president Donald Trump endorsed Oz and had urged him to declare victory before the vote count is completed. On Friday, Oz did just that in a video thanking Pennsylvanians for making him the “presumptive” Republican nominee.

The McCormick campaign says their mail-in ballot efforts will give them a boost if the rejected ballots are counted. McCormick’s race with Oz is so tight that it triggered an automatic recount, which is underway across the state.

In a large, windowless storage room in a government building in downtown Lancaster on Tuesday, three county employees placed stacks of ballots in rapid scanners and watched as they flashed across computer screens. They hope to finish scanning all the ballots by Friday.

A lawyer for the McCormick campaign watched, as did one volunteer watcher for McCormick and one for Oz. In Lancaster, the sixth most populous county in the state, there were 38 undated GOP ballots that, as of now, will not be counted.

The case is Ritter v. Migliori.