Ritter v. Migliori
The Court refused to pause a lower court ruling that required Pennsylvania to count undated mail-in ballots in a state judicial election, though three justices dissented and warned the ruling could disrupt Pennsylvania's November elections.
The order is temporary and leaves unresolved whether a federal anti-discrimination provision actually requires states to count ballots that are missing a required date.
How it got here: The Third Circuit ruled undated mail-in ballots must be counted; the losing party asked Justice Alito, then the full Court, to pause that ruling while seeking Supreme Court review.
The Case in Depth
What happened
A Pennsylvania judicial election produced a dispute over mail-in ballots that voters had not dated, as Pennsylvania law requires. The Pennsylvania Supreme Court had previously held that undated ballots cannot be counted. A federal appeals court — the Third Circuit — reversed course, ruling that a federal civil-rights provision barring officials from rejecting votes over errors that are unrelated to voter eligibility required the undated ballots to be counted.
The question before the Court
Must Pennsylvania count mail-in ballots that voters left undated, because a federal law bars rejecting votes over errors that have nothing to do with whether a person is eligible to vote?
The Court's answer
The Court declined to pause the Third Circuit's ruling while the losing party sought Supreme Court review. The unsigned order gives no explanation; the Court simply denied the stay and vacated the temporary pause that Justice Alito had previously entered on his own.
Three justices — Alito, Thomas, and Gorsuch — would have granted the stay, arguing that the Third Circuit's reading of the federal statute was very likely wrong and that acting before the November elections was far preferable to acting after them had already been affected by a potentially erroneous interpretation.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
Undated mail-in ballots in the Pennsylvania judicial election at issue were allowed to be counted. More consequentially, the Third Circuit's legal interpretation — if left standing — could require Pennsylvania to count undated mail-in ballots in its November 2022 federal and state elections, potentially affecting their outcome before any Supreme Court review takes place.
What changes now
The stay denial and vacation of Alito's earlier temporary pause means the Third Circuit's ruling takes effect and the undated ballots in the Pennsylvania judicial election may be counted. The underlying merits question — whether the federal statute actually requires states to count undated ballots — remains unresolved. Whether any party will seek certiorari, and whether the Court will take up the question before November 2022, is left open.
What this does not decide
The Court did not decide whether the Third Circuit correctly interpreted 52 U.S.C. §10101(a)(2)(B). The order resolves only whether to pause the Third Circuit's ruling temporarily — it says nothing about the legality of Pennsylvania's date requirement or how the federal statute applies to other ballot rules.
Concurrences and dissents
Dissent — Justice Alito
Justice Alito, joined by Thomas and Gorsuch, would have granted the stay. He argued the Third Circuit's reading of the federal materiality provision was very likely wrong — that the provision only protects voter eligibility requirements, not every ballot-casting rule — and that allowing the ruling to stand through November risked skewing statewide Pennsylvania elections before the Court could correct the error. He would have set an expedited briefing schedule to allow the Court to rule before the fall elections.
How the Court got there
The legal reasoning, step by step
- A stay pending potential Supreme Court review is appropriate only when the applicant shows a likelihood that the Court would agree to hear the case, a strong chance of ultimately winning, and serious harm if the stay is not granted. The Court's one-line denial implies the majority was not satisfied that those conditions were met — but the majority gave no written explanation.
- Justice Alito's dissent focused on the five-part structure of the federal civil-rights provision at issue (52 U.S.C. §10101(a)(2)(B)), which bars election officials from rejecting a vote based on an error or omission that is not relevant to determining whether the person is legally eligible to vote in that election.
- On the second element — whether refusing to count an undated ballot 'denies the right to vote' — Alito argued it does not. Following the rules for casting a valid ballot (like dating it) is distinct from the right to vote itself; a voter who fails to comply has forfeited the opportunity to have that ballot counted, not had a right stripped away.
- On the fifth element — whether the date requirement is 'material to determining eligibility' — Alito argued it clearly is not, because eligibility under Pennsylvania law turns on age, citizenship, residency, and criminal status. But that, he argued, proves too much: under the Third Circuit's logic, nearly every ballot-casting rule (the signature requirement, for instance) could be invalidated for the same reason, an outcome plainly inconsistent with what Congress intended.
- Alito also questioned whether a mail-in ballot even qualifies as a 'record or paper related to an application, registration, or other act requisite to voting' as the fourth element requires — since casting a ballot is the act of voting itself, not an act 'requisite to' it.
- Because the Third Circuit's interpretation was, in Alito's view, very likely wrong and posed a concrete risk of affecting the November Pennsylvania elections before any correction could occur, he would have granted the stay and set an expedited briefing schedule.