On Friday, the United States Court of Appeals for the Third Circuit ruled  in Migliori et al v. Lehigh County Board of Elections – a case brought by the American Civil Liberties Union – that 257 mail-in ballots that had been excluded from the 2021 general election because voters had not handwritten a date on the outer return envelope had to be counted. Federal appeals court says undated Pa. mail ballots should be counted, a decision that breaks with state courts and could have immediate impact:

Pennsylvania mail ballots submitted without a date on the envelope last year should be counted, a federal appeals court said Friday, a ruling that could mean thousands more votes get counted in elections moving forward — starting with this past Tuesday’s primary.


The ruling will also almost certainly reignite the smoldering political fight over undated mail ballots; create new questions and pressure for county elections officials as they continue to count votes from this week’s primary; and create another potential opening for county-by-county legal challenges as the Senate Republican primary heads toward a likely recount.

The full extent of the decision’s impact is unclear, because the court issued a judgment and said an opinion would come later. But based on the order, lawyers from both parties said, the path was suddenly cleared for counties to count the undated mail ballots they had been preparing to reject this election.

The question before the three-judge panel in Philadelphia was whether to count 257 undated mail ballots in Lehigh County from last November’s general election. State law requires voters to sign and date the outside mailing envelope when they return their mail ballots, and state courts have held that the requirement means undated ballots must be rejected.

But throwing out those votes violates the federal Civil Rights Act, the ACLU argued, because the date isn’t actually used in determining the legitimacy of a vote. The group brought the case, Migliori v. Lehigh County Board of Elections, on behalf of five voters whose undated ballots were to be rejected after a separate case wound through state courts.

The U.S. Court of Appeals for the Third Circuit judges agreed Friday, declaring the date requirement in state law is immaterial under the Civil Rights Act — meaning it can’t be used as a reason to reject ballots.

“Accordingly, there is no basis on this record to refuse to count undated ballots that have been set aside in the November 2, 2021, election for Judge of the Common Pleas of Lehigh County,” the judgment reads. The judges returned the case to the federal district court, “and that court is hereby directed to … enter an order that the undated ballots be counted.”

The decision has implications that could extend far beyond one election in one county.

The question of whether to count undated mail ballots has been one of several fronts in the broader legal and political war in Pennsylvania over mail ballots. Republican lawmakers last year threatened to impeach Philadelphia elections officials over the issue, and the current case has drawn court filings from top Republican state lawmakers on one side and the U.S. Department of Justice on the other.

The ruling will also raise new questions for county elections officials in the process of counting votes from this week’s election and who now have to decide all over again whether to count undated mail ballots. And that comes as the Mehmet Oz and David McCormick campaigns prepare for a recount — and to fight over every vote.

Suddenly, there are more votes to potentially fight over.

The decision could have immediate impact

In recounts, the trailing candidate wants to add as many votes as possible to the count in the hopes they can change the result; the leading candidate wants to prevent any votes from getting added, protecting the lead.

An army of lawyers from across the country is descending on Pennsylvania for the Oz and McCormick campaigns, and both sides had already been discussing the possibility of Friday’s ruling, sources said.

[T]he Department of State, based on rulings in state court, has told counties they should reject undated mail ballots. Many counties thought the matter had been settled, whether they liked it or not.

The state Supreme Court ruled that year that undated ballots be counted for that election only — but three justices interpreted state election law to allow counting undated ballots, while three justices said the law didn’t allow it. The seventh, Justice David Wecht, said undated ballots should be counted in 2020 but rejected in the future — once voters had better instructions about dating ballots and the consequences for failing to do so.

Now counties will have to decide again: Should they count the undated mail ballots now that the federal appeals court’s order seems to give them the ability to do so? That decision will come down to the county solicitors and local elections officials.

Counties that choose to count undated mail ballots may face challenges from a campaign that wants those ballots thrown out. Meanwhile, the other side will likely try to persuade counties to add those votes into the count.

The question of undated mail ballots has continued to be a flashpoint.

On Monday, Politico reports McCormick takes Pa. Senate ballot fight to court:

The war over every last vote in Pennsylvania’s too-close-to-call Senate GOP primary is now officially headed to the courts.

David McCormick’s campaign filed a lawsuit Monday afternoon arguing that election officials must count mail-in and absentee ballots that lack a date on their envelope, citing a federal court order released on Friday.

McCormick and his primary opponent, Mehmet Oz, have been squabbling over whether undated ballots should be counted. The fight began late last week, after a three-judge panel on the federal 3rd Circuit Court of Appeals issued a judgment that undated ballots in a 2021 county judgeship election should be counted.

McCormick’s lawsuit, filed in state court, sues the state’s chief election official and county election boards in order to compel them to count the undated ballots that were returned on time.

As of 6 p.m. Monday, Oz was leading McCormick by fewer than 1,000 votes — well within the margin for an automatic recount in the state. In the days after the May 17 primary, both Oz and McCormick unleashed an army of lawyers in Pennsylvania and tapped alumni of former President Donald Trump’s 2020 campaign to help them with behind-the-scenes combat over every vote.

Apparently epic failure does not affect the employablility of GQP lawyers. Trump’s lawyers lost over 60 cases in 2020. The only “win” was over a filing deadline in one case, a technical matter which did affect the outcome of the vote.

The 3rd Circuit Court of Appeals ruled on Friday that the state’s laws requiring ballots be dated by the voter was “immaterial” under a federal statute that originated with the Civil Rights Act of 1964 — meaning it should have no bearing over whether ballots are accepted or rejected.

But the court did not release its full formal opinion, so there has been uncertainty on how — or whether — to apply its finding to other elections aside from that 2021 judgeship contest. In the days following the judgment, the Department of State has also not yet issued guidance to election officials on how to deal with undated ballots in Tuesday’s primary.

The circuit court may not be the final say on the order. One of the parties in the case — David Ritter, a candidate in that judicial race — asked the court on Monday to stay its judgment, signaling that there would likely be an appeal to the U.S. Supreme Court.

Hours after the judgment was issued Friday, McCormick’s campaign sent a letter to Pennsylvania’s 67 counties arguing that undated ballots should be tallied and requesting a hearing if election boards declined to count them. Oz’s team followed suit with its own letter to counties, making the case that they should be rejected.

Since Oz is ahead, he likely stands to benefit if fewer additional mail-in and absentee ballots are tallied. McCormick, meanwhile, has been outperforming Oz in those ballots, meaning he could gain if more of those votes are counted.

An aide for Oz did not immediately respond to a question on if the campaign plans on intervening in McCormick’s lawsuit. But in a statement issued last week, Oz campaign manager Casey Contres said “the McCormick legal team is following the Democrats’ [successful] playbook” and it “will oppose the McCormick legal team’s request that election boards ignore both Pennsylvania’s Supreme Court and state election law and accept legally rejected ballots.”

Grace Griffaton, a spokesperson for the Department of State, said Monday afternoon that there are approximately 5,400 Republican mail-in and absentee ballots left to count, but it is “likely that the estimates include rejected ballots that have not yet been recorded.” It is unclear how many undated ballots have been processed.

Absent any guidance from the Department of State, some counties have already decided to count undated ballots in light of the circuit court ruling. Northampton County plans on tallying 380 undated ballots across both parties, according to The Morning Call.

Others counties are more hesitant to do so. In an email attached to McCormick’s lawsuit, an attorney for Blair County emailed lawyers representing both McCormick and Oz about the uncertainty around these ballots.

“While I do not always agree with the guidance provided by the Department of State, Bureau of Elections, and Blair County is not legally obligated to follow such guidance, I also do not believe it would be appropriate for the County to proceed without having reviewed such guidance,” Nathan Karn, the county solicitor, wrote.

“With all of the outstanding issues, Blair County will be maintaining the segregation of the undated ballots at this time and will not count them until there is clear finality,” Karn continued, citing the likelihood of a challenge to the 3rd Circuit decision.

The number of ballots at play could be small. McCormick’s lawsuit said that the figure was “likely thousands of voters,” but it is unclear how many of them are Republican voters. Blair County — a small, overwhelmingly Republican county with a population of a little over 120,000 — only had 10 undated Republican ballots, according to Karn.

According to election officials in the state, counties track when mail-in and absentee ballots are received, so they know if they have arrived on time, regardless of whether a date is written on the envelope. Election officials and election law attorneys also said counties currently accept ballots with a date in the future or a voter’s birth date written on the envelope.

Some Republicans have — wrongly — implied that it was unknowable when the undated ballots now at the center of the legal fight arrived. [Always with the conspiracy theories. Aways.]

On Sunday, Republican National Committee chair Ronna McDaniel took Oz’s side in the debate over undated ballots, saying on Fox News that “ballots should not be counted without a date.”

“While the Republican Party of Pennsylvania looks forward to supporting the Pennsylvania Republican U.S. Senate nominee, whoever it may be, we absolutely object to the counting of undated mail-in ballots,” the Republican Party of Pennsylvania said in a statement. “Pennsylvania law and our courts have been very clear that undated ballots are not to be counted. We have worked hard towards restoring confidence in our elections, and we call upon everyone to respect, uphold and follow the clear law on the issue.”

The 3rd Circuit’s ruling would not affect ballots in the county judgeship race that arrived after the received-by deadline, which is the close of polls on Election Day. Also on Monday, the court issued an amended judgment stressing that point, noting that it was “undisputed” that the ballots at the center of the lawsuit in question “were received by the deadline,” meaning that “there is no basis on this record to refuse to count them.”

* * *

The race between Oz and McCormick will go to an automatic recount if it comes down to a half-percentage point or less, unless the runner-up declines it.

For a recount to occur, the secretary of state must order it by Thursday. A recount must begin by June 1 and be finished by June 7.

The stay request from Ritter, the county judicial candidate, could also have far-reaching effects beyond just how to count a typically small number of ballots in Pennsylvania. The appeal argues that the Civil Rights Act does not have a private right of action — meaning only the U.S. government, and not private citizens, could sue to enforce it.

Challenging both the Civil Rights Act and Voting Rights Act as not having a private right of action has increasingly been central to some lawsuits looking to undercut the laws — and if the Supreme Court eventually found as much, it could upend much of the enforcement of the landmark laws.

There is nothing Chief Justice John Roberts loves more than nullifying the Voting Rights Act of 1965 by judiical fiat. How else is he going to clear the path to a permanent GQP tyrrany of the minority? “White power for evah!