The issue attracted intense interest recently when there was a prospect it might affect the outcome of Pennsylvania’s extremely close Senate GOP primary. But the question is likely to arise in future disputed elections.
Fewer than 1,000 ballots separated the vote totals in Pennsylvania for celebrity surgeon Mehmet Oz, endorsed by former President Donald Trump, and former hedge fund executive David McCormick. At least 860 mail ballots weren’t counted because they lacked dates.
McCormick conceded the race to Oz last week before a recount was finished. The mail ballots were most likely not decisive given the challenge of overcoming a deficit of nearly 900 votes.
The Supreme Court order came in a different Pennsylvania election, one for a state judgeship in 2021. In that contest, Republican David Ritter led Democrat Zac Cohen by 71 votes. The total didn’t include mailed-in votes submitted without the date that is required by state law on the outer envelope.
In Pennsylvania, ballots cast by mail must be placed in preprinted envelopes, which voters must “fill out, date, and sign.” After a state court ruled that undated ballots shouldn’t be counted in the judicial election, a group of voters went to federal court, arguing the ballots should be counted.
The 3rd U.S. Circuit Court of Appeals, based in Philadelphia, ruled that a provision of the federal Civil Rights Act requires counting ballots even if they include minor errors that aren’t material to determining whether the people casting them are legally qualified to vote.
Pennsylvania’s attorney general has determined that a mail ballot must be counted even if the date written on the envelope is the wrong one. Therefore, the appeals court said, if “the substance of the string of numbers does not matter, then it is hard to understand how one could claim that this requirement has any use in determining a voter’s qualifications.”
Justices Clarence Thomas, Samuel Alito and Neil Gorsuch said Thursday the court was wrong to let the undated ballots be counted. Writing for Thomas and Gorsuch, Alito said the appeals court decision broke new ground and was very likely wrong.
“If left undisturbed, it could well affect the outcome of the fall elections,” Alito wrote, adding that the Supreme Court should have taken up the appeal.
Abiding by the Legislature’s requirement doesn’t deny anyone the right to vote, Alito said. The ballot simply isn’t counted because the rules weren’t followed. “Even the most permissive voting rules must contain some requirements, and the failure to follow those rules constitutes the forfeiture of the right to vote, not the denial of that right.”
The Supreme Court is considering whether to take up a case involving congressional redistricting in North Carolina. A central issue is whether legislatures, not state courts, have final authority to decide how elections for federal candidates are conducted.
Pete Williams is an NBC News correspondent who covers the Justice Department and the Supreme Court, based in Washington.