November 28, 2023

In Brief: A Mail-Vote Time Bomb Keeps Ticking

Pennsylvania’s undated ballots might go to the Supreme Court — again.

Given the furor over recent elections, you’d think both sides would be adamant about setting rules in plenty of time and then following those rules. Yet Democrats don’t want to do that because rule-following doesn’t help them win. The latest comes out of Pennsylvania, and The Wall Street Journal editorial board has the scoop:

The 2024 election will probably be preceded by another flood of lawsuits over voting rules, especially absentee ballots, and keep an eye on Pennsylvania. Last week a federal judge there ruled that timely mail ballots must be counted even if the voter neglected to write the date, as state law requires. This may go to the Supreme Court, which punted a similar case last year.

The saga of Pennsylvania’s undated ballots since the Covid pandemic is worth unspooling, because it shows how litigation puts indeterminacy into the election system. State law is unambiguous in saying that absentee voters must “fill out, date and sign the declaration printed on such envelope.” This requirement has gone to court repeatedly for three years, with frustratingly inconclusive results.

In 2020 a Republican state Senate candidate, Nicole Ziccarelli, was poised to topple a Democratic incumbent, whom she led by four votes. Eventually she lost by 69, after the Pennsylvania Supreme Court ordered the tallying of some 300 undated mail ballots. Four of the seven Justices agreed such ballots were invalid under state law. But the swing Justice said that given the circumstances, “I would apply my interpretation only prospectively.”

A year later, the question was whether federal law overrides Pennsylvania’s date mandate. A Republican judicial candidate, David Ritter, was up by 71 votes, with about 250 undated mail ballots uncounted. Guess what happened next? Mr. Ritter lost by five, after the federal Third Circuit Appeals Court ordered the extra ballots to be included, citing the Civil Rights Act. Specifically, that law says “the right of any individual to vote” cannot be denied based on a paperwork error that “is not material in determining whether such individual is qualified.”

Unfortunately, the U.S. Supreme Court decline to restore Rule of Law, despite strong protestation from three conservative dissenters led by Samuel Alito. Discounting a ballot because a voter didn’t follow the rules isn’t denial of a right, he argued to no avail. That was followed by other indecisive court rulings. The Journal concludes:

Now it’s back to square one, with five Pennsylvanians claiming they were disenfranchised last year. Federal Judge Susan Paradise Baxter, ruling in their favor last week, says hundreds of mail votes in 2022 were rejected for obvious goofs like incorrect years, even though the written date is “irrelevant,” because what matters is whether the ballot was returned on time. But asking voters to date their ballots is a neutral, de minimis rule that could be useful in fraud cases. No law can end mistakes.

The nightmare is that control of the White House or the U.S. Senate could be decided after Election Day by a Supreme Court opinion on missing dates, incomplete witness addresses, or other ballot defects. That’s why the Justices should quit dodging these cases. The time to settle voting rules is when the stakes are low, which is to say, well in advance of Election Day.

Read the whole thing here.

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