Keystone Today

U.S. Supreme Court Justice Alito’s ruling on undated mail ballots in Pennsylvania, which has major implications on a still undecided U.S. Senate Republican primary race, was the right decision, says Ken Cuccinelli, national chairman of the Election Transparency Initiative and former attorney general of Virginia.

“Justice (Samuel) Alito’s decision was wise,” Cuccinelli told Keystone Today in an email. “There's no good federal basis to dictate to states how to handle undated ballots.”

“Pennsylvania law was a perfectly reasonable way to address the subject; ergo, federal law and the federal courts have no business messing with it - in Pennsylvania or anywhere else,” he added.

On Thursday, Commonwealth Court ruled that counties should count the undated ballots. That decision, however, could be reversed by the Supreme Court, but it’s unclear when the High Court might follow up on the Alito ruling with a final decision on the case. Given the Supreme Court's involvement in the case, Commonwealth Court ordered the counties to separate the undated ballots from the dated ones, the Associated Press reported.

In his ruling, Alito temporarily halted a lower-court decision over a 2021 local court election that allowed the counting of mail ballots without a handwritten date, even though state law requires the date on the outside of the return envelopes containing the ballots.

It was based on the lower court ruling that the Pennsylvania Department of State recommended that counties count ballots without the handwritten dates in the tight U.S. Senate Republican primary race between businessman David McCormick and celebrity surgeon Dr. Mehmet Oz. The Alito ruling was seen as a blow to McCormick, who, according to the Associated Press, is faring better than Oz with mail ballots. Last week, the McCormick campaign filed the Commonwealth Court lawsuit seeking to have the ballots counted.

McCormick is trailing Oz by only 922 votes out of 1.3 million cast on Primary Day, May 17.

Lisa Dixon, executive director of the Lawyers Democracy Fund, a public interest law firm that safeguards voting rights, said that the bogeyman in all this is a 2019 state law, Act 77, that legalized no excuse mail ballots.

The confusion over the ballots, she told Keystone Today, “demonstrates how important it is to have the rules for an election established well ahead of time, but Act 77 lacks clarity in a number of areas, generating litigation over the rules during every election in which it has been in effect.”

“The people of Pennsylvania deserve clear election rules that are not re-litigated every election so that they can have confidence in their election system and outcomes,” she added. “Act 77 instead fuels the litigation fires as candidates see opportunities in its problems."