Pennsylvania to ignore Supreme Court’s recent order regarding mail-in ballots

by Elad Hakim

Photo: Alamy

Earlier this week, the United States Supreme Court issued an order in the case of Migliori v. Lehigh County Board of Elections, which could impact future elections.

In the order, the court vacated the judgment of the United States Court of Appeals for the Third Circuit and ordered the appellate court to dismiss the case as moot. As reported by Fox News, the appellate court ruled that ballots in undated envelopes must be counted, that a handwritten date had no bearing on a voter’s eligibility to vote, and that invalidating such undated ballots would violate voters’ civil rights.

The Supreme Court’s order in Migliori’s case invalidated the appellate court’s decision and prevented other states in the circuit from relying on the decision as precedent.

However, the federal case is not the only case of this nature in Pennsylvania. In a similar case (McCormick v. Chapman), filed in Pennsylvania state court, the state court also granted McCormick’s request to count undated mail-in ballots.

In light of the various opinions, on Sept. 26, 2022, the Pennsylvania Department of State released updated guidance which stated, “Any ballot-return envelope that is undated or dated with an incorrect date but that has been timely received by the county shall be included in the pre-canvass and canvass.”  

Despite the Supreme Court’s recent order in Migliori, acting Secretary of State Leigh Chapman recently announced that Pennsylvania election officials should continue counting undated envelopes.

As reported by Fox News, Chapman stated:

“Every county is expected to include undated ballots in their official returns for the Nov. 8 election, consistent with the Department of State’s guidance. That guidance followed the most recent ruling of the Pennsylvania Commonwealth Court holding that both Pennsylvania and federal law prohibit excluding legal votes because the voter omitted an irrelevant date on the ballot return envelope.”

 “Today’s order from the U.S. Supreme Court vacating the Third Circuit’s decision on mootness grounds was not based on the merits of the issue and does not affect the prior decision of Commonwealth Court in any way. It provides no justification for counties to exclude ballots based on a minor omission, and we expect that counties will continue to comply with their obligation to count all legal votes.”

In essence, the crux of Chapman’s argument appears to be that the Supreme Court’s opinion does not impact the decision rendered by the Pennsylvania state court(s) allowing undated ballots to be counted. Generally speaking, Supreme Court decisions are only binding on state courts if they involve the Constitution, constitutional issues, or federal law.

Here, while the issue, in part, involves the interpretation and/or applicability of Pennsylvania law, federal law is also possibly involved. As Democracy Docket recently noted, “Within the span of a week, a federal circuit court and a state appellate court both concluded that not counting undated mail-in ballots would violate the Materiality Provision of the Civil Rights Act of 1964.” 

For now, it does not appear that Chapman intends to follow the Supreme Court’s recent order. Moreover, the Constitution does not provide the Supreme Court with a mechanism to enforce its orders, as this is up to the other branches of government. However, so long as the court’s order remains in place, any Pennsylvania official who defies the order could possibly end up in federal court.   

Mr. Hakim is an attorney and columnist. His articles have been published in The Washington Examiner, The Daily Caller, The Federalist, American Thinker, and other online publications. He is also a regular guest on OANN’s Tipping Point, and has appeared on Newsmax, The Jenna Ellis Show, Steadfast and Loyal Podcast with Allen West, The Dave Weinbaum Show, and Real America’s Voice. The views expressed herein are the author’s own and do not constitute legal advice. 

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