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Business News/ Politics / A Mail-Vote Time Bomb Keeps Ticking
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A Mail-Vote Time Bomb Keeps Ticking

wsj

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

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. Premium
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.

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."

The Supreme Court refused to grant a stay, over three conservative dissents. “The Third Circuit’s interpretation is very likely wrong," Justice Samuel Alito wrote. “When a mail-in ballot is not counted because it was not filled out correctly, the voter is not denied ‘the right to vote.’ Rather, that individual’s vote is not counted because he or she did not follow the rules for casting a ballot." The same is true, Justice Alito added, if a voter goes to the wrong polling site or returns a ballot to a bad address.

After Mr. Ritter’s defeat was certified, he made a final appeal to the Supreme Court, complaining that the state “has ordered all counties to count undated ballots in future elections." The Justices ordered his case to be dismissed as moot, while also vacating the Third Circuit’s ruling, to prevent it from setting an unreviewable precedent. Then a week before Election Day in 2022, the Pennsylvania Supreme Court split 3-3 on what federal law requires of undated ballots.

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.

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