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Justice Alito Blocks Appeals Court Ruling That Could Decide PA Primary

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OPINION: This article may contain commentary which reflects the author's opinion.


Supreme Court Justice Samuel Alito just made a huge decision that could affect the outcome of the Pennsylvania Republican Senate primary.

On Tuesday the Justice, who oversees the third circuit, blocked the decision of the federal appeals court who ordered the counting of undated ballots, that were received on time, in the Pennsylvania election, The Washington Post reported.

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The administrative stay Alito issued involves a unanimous decision of a three-judge panel of the U.S. Court of Appeals for the 3rd Circuit. It said that mail-in ballots that were received on time but lacked a required date on the outer envelope should be counted. Alito is the justice who receives emergency applications from the 3rd Circuit.

The panel’s decision involved a local judge’s race in Lehigh County. But it is significant because of the too-close-to-call primary for the Republican Senate nomination involving Mehmet Oz and David McCormick. McCormick, who trails Oz by fewer than 1,000 votes, has filed a lawsuit in state court to require that such “undated ballots” be counted.

The state requires that anyone submitting a mail-in ballot “fill out, date and sign” the ballot, but the appeals court ruled that the right to vote superseded those rules.

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“We are at a loss to understand how the date on the outside envelope could be material when incorrect dates — including future dates — are allowable but envelopes where the voter simply did not fill in a date are not,” Judge Theodore McKee said in the unanimous decision. “Surely, the right to vote is made of sterner stuff than that.”

But the campaign for Oz submitted a brief in support of judicial candidate David Ritter. “The Third Circuit’s thinly reasoned and erroneous decision — which addressed a county judicial election conducted more than six months ago — is now being weaponized to undermine the apparent result of a statewide primary election for the Republican nomination to represent Pennsylvania in the United States Senate,” his attorneys said.

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Last month the three judge panel on the 3rd Circuit Court of Appeals issued a ruling that said election officials should count several hundred mail ballots that were received without a date on the envelopes in an election for county judge that were received on time, Politico reported.

“Look, you have a federal Court of Appeals ruling in unmistakable terms that the date requirement is immaterial,” Adam Bonin, a Democratic election lawyer involved in the case, said.

“This is what the Department of State said: It just has to have a date on it,” he said. “And all the ballots, when they’re received by the counties, they get time-stamped, they get clocked in. So we know that they arrived on time. … So whether or not a voter handwrites in the date, it doesn’t matter at all. And I’m glad that this court recognized it.”

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Philadelphia City Commissioner Lisa Deeley said that the decision is a “major victory” for voters.

“The numbers of undated ballots are scary,” she said. “And even if the number were five, it’s still five too many. A voter’s done everything. They filled out the application. They got the ballot. We know we got the ballot back in time. … So it just always seemed like an unnecessary step and I’m glad that the federal court agreed.”

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Federal law says that no person can be denied the right to vote “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.”

In response to the case, a McCormick campaign official said, “We’re glad votes are continuing to be counted.”

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