Pennsylvania Senate Race May Turn on Supreme Court Order Over Mail Ballots

Ryan Teague Beckwith
·2 min read
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(Bloomberg) -- A US Supreme Court order involving the counting of undated mail ballots in Pennsylvania risks a chaotic post-election in a state with a tight race that could determine which party controls the Senate.

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With ballots already being sent out by some Pennsylvania counties, the US Supreme Court on Tuesday vacated a lower court decision that would have required local elections officials to count mail ballots even when voters forgot to add a date next to their signatures.

Pennsylvania Republicans say such ballots should not be counted, because state law requires voters to sign and date their ballots. But Democrats -- including acting secretary of state Leigh Chapman -- have argued that is a technicality.

Lawyers on both sides agree that the issue will likely lead to another lawsuit after the November midterms, when the ballots could be decisive in a close contest between Democratic Senate nominee John Fetterman and Republican Mehmet Oz. Polls show Fetterman with a narrow lead in one of the races that could determine whether Democrats continue to hold the Senate, currently divided 50-50 with Vice President Kamala Harris as the tie-breaker.

“This will definitely lead to more litigation,” said Jessica Marsden, a voting rights lawyer with Protect Democracy.

Neither the Fetterman nor Oz campaigns immediately returned messages seeking comment.

Historically, Pennsylvania did not count undated mail ballots, but that changed when mail voting surged in the 2020 election amid the coronovirus pandemic.

The Democratic secretary of state at the time, Kathy Boockvar, changed the guidance, which led to a legal challenge, with the state’s highest court deciding that undated ballots in the 2020 election should be counted. But a key justice, David Wecht, said that was a one-time exception and they shouldn’t be counted in the future.

A federal appeals court later said the ballots should be counted, citing a provision of the Voting Rights Act that bars elections officials from tossing ballots based on minor problems, but the US Supreme Court vacated that decision.

Joshua Voss, a Republican elections lawyer in Pennsylvania, said that decision should make it clear to state and local officials that the ballots shouldn’t be counted. But he, too, expected that whatever elections officials do will likely end up back in court, which he said was unfortunate.

“This should be an apolitical point. It doesn’t matter if you’re Democrat or Republican,” he said. “Election rules should be fixed, certain and uniformly applied.”

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