The U.S. Supreme Court is staying out of a legal fight over undated Pa. mail ballots — for now

The U.S. Supreme Court has declined for now to wade into the debate over whether undated mail ballots should be counted in Pennsylvania elections, a fight that could decide whether thousands of votes are accepted in future elections that would otherwise have been thrown out.

The justices on Thursday lifted a temporary stay that had prevented hundreds of them from being counted in a contested 2021 judicial race in Lehigh County, in line with a lower court ruling last month. But, in doing so, three of the court’s nine justices signaled they were eager to hear the wider case on appeal, acknowledging the confusion it has unleashed among elections officials in Pennsylvania over whether those votes should be counted in other races.

That uncertainty most recently became a flashpoint in the tight GOP primary for U.S. Senate between Mehmet Oz and David McCormick, spawning a separate state lawsuit on whether more than 800 undated Republican mail ballots should be counted in their race.

In a dissent that accompanied Thursday’s Supreme Court order, Justice Samuel A. Alito Jr. predicted similar questions would arise in Pennsylvania’s November election, and urged his colleagues to take up the case.

“It would be far better for us to address that [issue] before, rather than after, it has an effect,” Alito wrote. He was joined by Justices Clarence Thomas and Neil Gorsuch in his dissent.

It was Alito, who handles emergency matters for the Supreme Court arising out of Pennsylvania, who imposed the temporary stay in the Lehigh County case last week. TThe court has not yet decided whether it will hear a full appeal on the matter.

» READ MORE: The Pa. Senate race recount is complete and the results show how accurate the vote count was

At issue are mail ballots that arrived on time but are missing the handwritten date on their outer envelopes required by state law. Previously, those ballots would have been rejected.

The case centered on 257 undated mail ballots received in the 2021 judicial race pitting Democrat Zachary Cohen against Republican David Ritter. Cohen finished 74 votes behind Ritter. The undated ballots could tip the balance, though they have never been opened and counted.

In deciding the case in May, the U.S. Court of Appeals for the Third Circuit ruled that the state’s dating requirement was arbitrary in determining whether a ballot was cast by an eligible voter. Because ballots with obviously wrong dates — such as voters’ birth dates — are counted, the court said, the handwritten date is immaterial.

The Third Circuit’s ruling prompted immediate objections from Ritter at the U.S. Supreme Court and sowed uncertainty among elections administrators across the state.

The question of whether to count those ballots remains unresolved as the debate spawned legal fights on multiple fronts — most notably in the McCormick-Oz race, where McCormick, citing the Third Circuit’s ruling, petitioned the Pennsylvania Commonwealth Court to have undated mail ballots counted in this year’s races.

Last week, that court’s president judge, Renée Cohn Jubelirer, said she found the Third Circuit’s reasoning persuasive and issued a temporary injunction ordering Pennsylvania counties to include undated mail ballots in the tallies they submitted to the state.

That case is ongoing, though McCormick conceded Friday. He lost to Oz by 951 votes. Attorneys for Oz and the national and state Republican Parties have urged Cohn Jubelirer to dismiss the case as moot and vacate her earlier order — a motion state elections officials have fought, as they push for a final answer.

But in his dissent Thursday, Alito laid out the critique of the Third Circuit ruling that Cohn Jubelirer had earlier said was lacking. He said the federal appellate court’s decision, in his view, was “very likely wrong.”

He disagreed with the Third Circuit’s finding that the state’s dating requirement was a technicality and that rejecting ballots because of it denied otherwise eligible voters the right to vote. Instead, he argued, those voters had given up their vote by failing to follow the law.

“Even the most permissive voting rules must contain some requirements,” he wrote. “The failure to follow those rules constitutes the forfeiture of the right to vote, not the denial of that right.”

» READ MORE: Why David McCormick couldn’t catch Mehmet Oz in the Pa. Senate primary

In many ways, Alito’s dissent Thursday read as a road map for Ritter, laying out arguments to convince the Supreme Court to hear the wider appeal of the case.

Ritter’s attorney, Joshua Voss, said in a statement he looked forward to presenting his full argument to the court in “the immediate future.”

“While we are disappointed that a continued stay was not granted, we are encouraged that at least three justices have been persuaded that these issues are far from certain or resolved,” Voss said.

For now, the lifting of Alito’s temporary stay means the order to include the undated ballots in the Lehigh County race can take effect and a winner could be certified before the Supreme Court has another opportunity to weigh in.

“Zac and I have been fighting since November of last year because we knew that these voters deserve to be heard,” said Cohen’s attorney, Adam Bonin, who argued the case alongside lawyers for the ACLU who represented voters whose ballots were in danger of being rejected.

But for future elections — including the general election this fall — the question of whether to count undated mail ballots remains open. Though the Pennsylvania Department of State, which runs elections, argued in court that undated ballots should be counted, it did not include them in a final tally of the votes in the Oz-McCormick race they released Wednesday.

The department hasn’t explained that decision.

Read Alito’s dissent: