The Pennsylvania state Supreme Court has rejected an effort by interests including the Republican National Committee and Republican Party of Pennsylvania to undo a lower court decision demanding the counting of mail-in ballots that didn’t include a handwritten date next to the voter’s signature. These ballots were part of the recent Pennsylvania GOP primary for one of Pennsylvania’s Senate seats.
David McCormick, who lost the GOP primary to Mehmet Oz — aka Dr. Oz — pushed for the counting of those undated mail-in ballots. As has been argued in other litigation in Pennsylvania that didn’t deal with the GOP Senate primary, McCormick’s challenge insisted that the absence of a handwritten date was “an immaterial omission that does not reflect the voters’ eligibility,” as summarized by Democracy Docket. “The Commonwealth Court granted McCormick’s request and ordered counties to count the undated ballots, but maintain separate results — one with the undated ballots included and one without — until a final decision on the merits is reached,” Democracy Docket also explains.
Oz and his Republican Party supporters filed an application to vacate the lower court order, and that’s been denied. “NEW: Pennsylvania Supreme Court dismisses GOP appeal in undated ballot case,” voting rights lawyer Marc Elias reported Saturday. “Importantly, the court DENIES Republican motion to vacate the lower court decision.”
NEW: Pennsylvania Supreme Court dismisses GOP appeal in undated ballot case. Importantly, the court DENIES Republican motion to vacate the lower court decision.https://t.co/QXYcHcon1X pic.twitter.com/y0w3h5XUIr
— Marc E. Elias (@marceelias) June 11, 2022
Oz — who Trump supports — ended up winning the Republican primary, which went to a recount. The seat for which Oz and his Democratic general election challenger, Pennsylvania Lieutenant Governor John Fetterman, are running is believed to be among the most flippable among the Senate seats on the ballot this year. It’s currently held by Republican Pat Toomey, who is not running for re-election. Pennsylvania’s other Senator is already a Democrat, and Biden won there back in 2020 — so the state clearly isn’t some kind of Republican-dominated locale.
That other litigation dealing with a similar issue centered on undated mail-in ballots in a local judicial race in Pennsylvania. The U.S. Supreme Court recently upheld a decision from a lower-level appeals court demanding that the disputed ballots in that race be counted. Eventually, the 3rd U.S. Circuit Court of Appeals concluded the disputed ballots must be counted and that a disputed private right of action under the Civil Rights Act was, in fact, present, allowing the challenge to stand. It’s the Republican contender in the initial judicial race who filed a push with the U.S. Supreme Court for the previous appeals ruling to be put on-hold. Initially, such a hold was provided — but now, with a fuller conclusion regarding the matter, the court has upheld the counting of the ballots and done away with that hold. Justices Samuel Alito, Neil Gorsuch, and Clarence Thomas dissented from the majority’s decision, meaning they’d have backed essentially undoing the lower court’s conclusions.
Federal law to which the 3rd Circuit’s decision was tied states, in part: “No person acting under color of law shall… deny the right of any individual to vote in any election because of an error or omission on any record or paper related to any application, registration, or other act requisite to voting, if such error or omission is not material in determining whether such individual is qualified under State law to vote in such election.”
Alito argued failing to adhere to rules for mail-in balloting and therefore losing the opportunity to participate in an election doesn’t equate to losing the right to vote — which is just flatly ridiculous. “When a mail-in ballot is not counted because it was not filled out correctly, the voter is not denied “the right to vote,”” Alito claimed. “Rather, that individual’s vote is not counted because he or she did not follow the rules for casting a ballot.” You can’t meaningfully separate the right to vote from the ability to express that right — those suppressed because of arbitrary rules restricting electoral processes don’t somehow still have a protected right to vote in the sense that they don’t need assistance from changing the law or other means to express the innate rights they’re supposed to hold in a democracy.
