Opinion | Oz vs. McCormick on Ballots in Pennsylvania’s Senate Race

The Pennsylvania Supreme Court docket dominated two years in the past that undated ballots are invalid, even when they arrive on time. State legislation clearly says voters should “fill out, date and signal” the poll envelope. But 5 Pennsylvanians who apparently can’t comprehend fundamental directions sued in federal courtroom after their undated ballots had been rejected in final 12 months’s judicial elections.

On Friday the federal Third Circuit Court docket of Appeals ordered that these undated 2021 ballots be counted. The judicial panel hasn’t posted its full opinion, however its judgment cites the Civil Proper Act of 1964. That legislation prohibits officers from throwing out ballots with minor errors, “if such error or omission shouldn’t be materials in figuring out whether or not such particular person is certified beneath State legislation to vote.” Within the Third Circuit’s opinion, a lacking handwritten date on a well timed poll is “immaterial.”

Now counties are in a pickle as they contemplate undated ballots from final week’s main. Do they put aside such votes, because the state Supreme Court docket mentioned? Do they comply with the Third Circuit’s view of a 2021 election, although the ruling may very well be appealed?

The figures look small, however there’s an opportunity they may very well be decisive if Mr. Oz’s lead continues to drop. Allegheny County says it has 42 undated GOP ballots. Montgomery County has 46, which is able to keep “unopened whereas we await steering from the Pennsylvania Division of State and any potential authorized motion.” What if some counties depend undated ballots and others don’t?

The worst final result will likely be if a federal courtroom finally ends up selecting the winner. In any case, state legislatures shouldn’t anticipate eventualities like this to explode sometime, someplace. Undated ballots and the like are the brand new hanging chads, a supply of indeterminacy, which is election poison. In the event that they flip the end result, each side can plausibly argue they gained.

As for the Third Circuit’s argument, does it apply to different goofs? Pennsylvanians are supposed to place mail ballots into unmarked secrecy envelopes, which go contained in the return envelopes. If a “bare poll” is distributed in, it’s rejected. In 2020 the state Supreme Court docket upheld that legislation. Would the Third Circuit name an enveloping error “immaterial”? Allegheny County has 658 bare ballots for each events. One other 14 have “figuring out marks on the secrecy envelope.”

Hopefully the U.S. Supreme Court docket will tidy up the Third Circuit’s mess, and state legislatures will act earlier than 2024 to make clear muddled legal guidelines on mail voting. But when that fails, look out for extra ballot-counting chaos, and extra public distrust in election outcomes.