A Pennsylvania appeals court has reversed a lower court’s ruling to count hundreds of mail-in ballots in Lehigh County that did not include a date on the return envelope, as required by law.
The case centers on a challenge to the Nov. 2 municipal election by Republican David Ritter, a candidate for a judgeship on the Lehigh County Court of Common Pleas who holds a narrow lead over Democrat Zachary Cohen for the last of three open seats.
Ritter identified 257 mail-in ballots that did not contain a date on the return envelope and four ballots with the date in the wrong place that were counted last fall by the Lehigh County Board of Elections.
A trial court affirmed the board’s decision in an order issued Nov. 30, but the Commonwealth Court reversed that ruling Monday in an opinion authored by Judge Patricia McCullough. McCullough cited a 2020 Supreme Court case on similar issues in ruling the ballots must not be counted.
“Upon review, we conclude that the 257 ballots that do not contain a date must be set aside and not counted in the municipal election,” McCullough wrote. “Because the remaining four ballots will not have an impact as to whether Ritter obtained enough votes to be elected to a judgeship, we decline to determine their validity or invalidity under the Election Code.
“Accordingly, we reverse the order of the trial court and remand to the trial court to issue an order sustaining Ritter’s challenge to the board’s determination and directing the board to exclude the 257 ballots from the certified returns of the municipal election.”
Ritter told WFMZ-TV he was “very pleased” by the ruling.
“My team of attorneys and I are very pleased by the decision of the Commonwealth Court,” Ritter said. “We are now hopeful the matter will soon be fully and finally resolved so that the citizens of Lehigh County will have a full complement of judges on the Court of Common Pleas.”
State Rep. Seth Grove, R-York, also applauded the court’s decision and attacked the Lehigh County Board of Elections for fighting the lawsuit.
“While I recognize the importance of the commonwealth court upholding Pennsylvania’s current election law when it ruled nearly 300 mail-in ballots shouldn’t be counted because of undated outer security envelopes, this is an issue which should have never been before the courts,” Grove said. “This issue was settled in 2020, therefore rouge counties and election boards need to stop wasting taxpayer dollars on frivolous lawsuits and administer elections on the law. Lehigh County should not seek an appeal and spend more taxpayers’ dollars on settled case law.”
Grove, chair of the House State Government Committee, stressed how the Voting Rights Protection Act approved by the General Assembly and vetoed by Gov. Tom Wolf would have provided a way for voters to rectify ballots with minor errors such as a missing date.
“Fortunately, the reintroduced version of the Voting Rights Protection Act includes measures to provide a legislative resolve to this issue,” he said. “I sincerely hope Wolf takes heed of these cases and recognizes the importance of this bill becoming law.
“Candidates and voters shouldn’t be left in limbo as they wait for election results like candidates and voters of Lehigh County are experiencing. Rather, we need a trusted, full-proof election process as proposed in the Voting Rights Protection Act,” Grove said.
Ritter’s lawsuit has prevented Lehigh County from certifying the 2021 election results. Cohen’s attorney, Adam Bonin, told WFMZ he plans to appeal the ruling.
“These 261 ballots are from registered voters who turned in their ballots on time. Their ballots should be counted,” he said. “We respectfully disagree with the decision of the Commonwealth Court and will be appealing to the Supreme Court of Pennsylvania immediately.”