As the Wall Street Journal relates in an editorial published Monday evening, a dispute has arisen over the counting of mail-in ballots in the closely contested Republican primary election in Pennsylvania between David McCormick and Dr. Mehmet Oz. The candidates seek the party’s nod to run against ailing Democratic nominee, John Fetterman, for the seat now occupied by retiring Republican Senator Pat Toomey.
Clearly, the ballots should be counted.
The dispute boils to ballot envelopes. By state law, voters are supposed to write the date on the outside envelope into which the mail-in ballot is inserted. It is a frequent occurrence, however, that voters neglect to write the date, or write the wrong date — indeed, sometimes they write their date of birth, mistakenly believing that that is the datum being sought. A court decision by the Commonwealth’s highest court holds that mail-in voters must comply with technical requirements, including the dating requirement, in order for their votes to count.
That, however, is not the end of the matter. The federal Constitution (Article I, Section 4) provides that, while state legislatures are responsible for prescribing the “Time, Place and Manner of holding Elections” for Senate and House seats, “Congress may at any time by Law make or alter such Regulations except as to the Places of chusing Senators.”
Congress has exercised that power in the civil-rights laws. Specifically, Section 10101(a)(2)(B) provides that no federal or state official shall
deny the right of any individual to vote in any election because of an error or omission on any record or paper relating to any application, registration, or other act requisite to voting, if such error or omission is not material in determining whether such individual is qualified under State law to vote in such election[.] [Emphasis added.]
In this instance, a voter’s omission in writing the date on the envelope is clearly not material to the voter’s qualifications. First, regardless of the date on which votes are cast, voters either meet the age, citizenship, and residency requirements to vote or they don’t. Second, to the extent the date could be relevant to ensuring that the ballot was cast within the time-limits prescribed by state law, each vote is time-stamped when the state election officials receive it by mail.
The only votes at issue in the Republican primary are those stamped as received on or before Election Day. So we are not talking about streams of undated, potentially fraudulent votes arriving after the fact.
If all this were not clear enough, it is cinched by a federal appeals court decision last Friday, in a case involving a county judgeship election from 2021. As Politico reports, the Third Circuit ruled that hundreds of undated mail-in votes should be counted because they were received on time. The court has not yet issued its formal opinion explaining the ruling, but it did make clear that the dating requirement is “immaterial” under federal law — specifically, the civil-rights law excerpted above.
Media reports indicate that Dr. Oz’s slim lead could be withering away. McCormick appears to be benefiting from the mail-in vote more than Oz, so his camp wants the votes counted, while Oz opposes.
Those political calculations are understandable. Legally, though, they should make no difference. If the Commonwealth permits mail-in voting, which it does, and there is no question that ballots arrived on time, which there is not because of the date-stamping, then the votes should count. End of story.
The Journal’s editors fret over the prospect of the courts’ appearing to determine the outcome of the election. Respectfully, that invites the kind of hand-wringing that caused the Supreme Court to duck important election-law questions in 2020. This is not a matter of the courts’ deciding an election, but of letting voters decide it by counting valid votes. Regardless of what the Pennsylvania state supreme court has said, the Constitution empowers Congress to weigh in. It has done so with a clear statute, and the federal appeals court with jurisdiction over Pennsylvania has correctly interpreted that statute to require that votes be counted in a case that is directly on point.
Count the votes.