The issue arose in a Pennsylvania race, but the court's order is likely to influence election practices in other states.
The Supreme Court order came in a different Pennsylvania election, one for a state judgeship in 2021. In that contest, Republican David Ritter led Democrat Zac Cohen by 71 votes. The total didn’t include mailed-in votes submitted without the date that is required by state law on the outer envelope.
The 3rd U.S. Circuit Court of Appeals, based in Philadelphia, ruled that a provision of the federal Civil Rights Act requires counting ballots even if they include minor errors that aren’t material to determining whether the people casting them are legally qualified to vote. Justices Clarence Thomas, Samuel Alito and Neil Gorsuch said Thursday the court was wrong to let the undated ballots be counted. Writing for Thomas and Gorsuch, Alito said the appeals court decision broke new ground and was very likely wrong.
Abiding by the Legislature’s requirement doesn’t deny anyone the right to vote, Alito said. The ballot simply isn’t counted because the rules weren’t followed. “Even the most permissive voting rules must contain some requirements, and the failure to follow those rules constitutes the forfeiture of the right to vote, not the denial of that right.”