Keystone Today

A Pennsylvania elections case on appeal before the U.S. Supreme Court could open the door for courts in other jurisdictions to strike critical integrity safeguards from state laws, according to an amicus brief filed by the Lawyers Democracy Fund (LDF), a public interest law firm specializing in election integrity issues.

In the case, Ritter v. Migliori, the Third Circuit Court of Appeals in May applied the Materiality Provision of the Civil Rights Act to a requirement in Pennsylvania election law that those who vote by mail date the outside envelopes containing their ballots.

LDF Executive Director Lisa Dixon told Keystone Today that the Materiality Provision has never before been interpreted to apply to anything but a voter’s qualification to vote.

Lisa Dixon | Provided

“The Migliori decision is so bad because there exists no question that the voter receiving a mail ballot is already duly qualified to cast a ballot,” Dixon said. “And because these voters are already qualified, applying the Materiality Provision to preempt absentee ballot requirements is a grave mistake. It opens a Pandora’s box of courts overturning any and all ballot safeguards that the courts deem unimportant.”

She added that Pennsylvania is like all jurisdictions in regulating mail ballot casting for purposes other than ascertaining voter qualifications.

“All of these rules, such as requiring the mail ballot be dated, signed, placed it in a secrecy envelope, and returned on time, serve an invaluable purpose of safeguarding the integrity of mail voting,” she said. “Under the Third Circuit’s decision, however, all these commonsense safeguards are in jeopardy of being preempted under federal law even though none of these rules bear on a voter’s qualification to vote.”

The case stems from 257 undated mail ballots cast in November 2021 in Lehigh County in a race for three open seats on the Common Pleas Court. The Lehigh County Board of Elections ruled that the votes be counted, reasoning that the failure to date the outer envelopes was a “technical error.”

David Ritter, a Republican candidate, appealed to state court – he was ahead of fourth-place candidate Democrat Zac Cohen by just 71 votes.

Commonwealth Court, and then a federal district court, ruled that the ballots should not be counted, but in May the Third Circuit reversed those decisions.

Ritter appealed to the Supreme Court for an emergency ruling to block the Board of Elections from counting the ballots, but that appeal was denied in early June. Counting the undated ballots put Cohen up by five votes, and in late June Ritter conceded the race.

Dixon said that LDF was hopeful that the Supreme Court would reverse the Third Circuit before the November general election.

“If this decision is allowed to stand, it’s not just the absentee ballot rules in New Jersey, Pennsylvania, and Delaware that become vulnerable,” she said. “Other courts outside of the Third Circuit might be encouraged to follow and wrongly apply this provision to ballot requirements like the Third Circuit did.”