Pennsylvania election law battle could end up before the U.S. Supreme Court again: legal experts

The legal battles that unfolded from Donald Trump's team in 2020 could reappear after Tuesday's midterm election but on a Pennsylvania scale, wrote former impeachment lawyer Norm Eisen and campaign finance attorney Fred Wertheimer.

The Pennsylvania Supreme Court is in a unique position after a state justice passed away, making all votes 3 to 3. Already the parties are fighting over a deadlocked decision over whether mail-in ballots should be counted that were incorrectly dated. Based on the law, those ballots should be counted, but it has led to another round of lawsuits and federal cases have been filed.

"This past May, in a case concerning mail-in ballots from a November 2021 county judicial election, the 3rd U.S. Circuit Court of Appeals held that enforcing the requirement that mail-in ballots have dated outer envelopes violates a provision of the Civil Rights Act," the lawyers explained. "That provision, the 'Materiality Provision,' states the right to vote shall not be denied because of an 'error or omission' by a voter that is 'not material' to determining whether they are 'qualified' to vote."

While the U.S. Supreme Court declined to stay the case then, three of the justices stated that they would have intervened.

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"Soon after, on October 16, the Republican National Committee, National Republican Congressional Committee, and Republican Party of Pennsylvania requested the Pennsylvania Supreme Court to stop the counting of mail-in ballots with undated or incorrectly dated outer envelopes in the upcoming midterm election," wrote the legal experts. "They did so through a method that allows the Pennsylvania Supreme Court to fast-track cases without lower court proceedings."

On Tuesday is when they split the decision at the state Supreme Court, sending it back to the lower court decision.

By Thursday it got more complicated when the Pennsylvania Department of State issued guidance for the Nov. 1 order saying that they'll be scanned upon receipt to ensure a time stamp is added. If not, they'll be coded in the database as "segregated from other ballots."

On Nov. 4 there was another lawsuit. This time, civil rights advocates sued the state, saying that the updated mail-in ballots should be counted. The case was assigned to a Trump-appointed judge. Tuesday, John Fetterman's campaign brought a similar lawsuit in the same district. Both are demanding a permanent injunction stopping the state from rejecting the ballots. They're both quoting the previous 3rd Circuit case.

"According to the plaintiffs in the civil rights coalition’s complaint, mail-in voter qualifications are determined at the time the voter is issued a mail in ballot, and the date on the envelope is immaterial to determining the ballot’s timeliness because under Pennsylvania law, a ballot is timely if it is received by 8 p.m. on Election Day," the gentlemen said.

The Fetterman lawyers say that “[b]ecause Pennsylvania law determines voter eligibility based on the date of the election—rather than the date of marking the ballot—the [d]ate [on the envelope] provides no information about whether a voter is qualified.”

The underlying point is that the un-dated ballot issue is going to continue to be fought out in court. Meanwhile, the decision to verify every ballot is going to make things take even longer than initially thought. In Pennsylvania, Republicans have implemented legislation that prevents any ballots from being counted until the polls close. It means that all of the early ballots that came in were just sitting there. By contrast, for example, in Arizona, they can begin counting the second the ballot is received. It's why there are results for Arizona much faster than Pennsylvania.

"Accordingly, at least the trial court and likely the circuit panel should so rule again," the explainer concluded. "If the Western District of Pennsylvania and the Third Circuit permit counting undated ballots, we should expect another appeal on this issue to the Supreme Court. They may or may not take the case (they passed on it last time) on the merits. But if they do, hopefully they will take this same common-sense approach to the Materiality Provision as well."

Read the full explainer at Slate.