I regret to inform you that the “Dr. Oz” Republican Senate primary in Pennsylvania might actually be important. Currently, television doctor and paranormal enthusiast Mehmet Oz leads hedge fund manager and “Let’s go, Brandon” troll Dave McCormick by 900 votes. McCormick has asked for a recount, and I can only assume that extending this fight over who can be wrong the loudest counts as entertainment in Hell.
I don’t care about the outcome for the same reason I don’t care which clown gets to drive the car at the circus, but I do care about the process for determining the winner. Because the process for determining the winner in this election might give the Supreme Court, and Justice Samuel Alito specifically, a chance to further vitiate voting rights in this country ahead of the midterm elections.
That’s because of a current shadow-docket Supreme Court case that Oz’s campaign is helping stoke over a local judicial election in Pennsylvania. In that case, Republican judicial candidate David Ritter has asked the court to block the counting of certain votes cast in his November 2021 race against Democrat Zachary Cohen. Ritter is 74 votes ahead of Cohen for the third and final spot for a judgeship in Lehigh County. But, out of around 22,000 votes cast, 257 mail-in ballots were set aside by the county board of elections because the voters had neglected to write the date next to their signature on the outside of their ballot’s envelope. The envelopes had all arrived by Election Day, mind you. And they were also signed. They simply didn’t have a date next to the signature.
The Lehigh County board of elections decided to count the votes. It did so on the logical assumption that, given the fact that the ballots were received by the board by Election Day, they must have been filled out before then. Furthermore, the authenticity of these ballots is not in dispute; they are signed by the voters who mailed them. But they do lack a date on the envelope, and Pennsylvania laws say that the declaration that all voters must sign on the outside of mail-in ballots must be dated. Ritter does not want these votes to be counted, because—it should almost go without saying—he would lose if they were. So he sued the board of elections to prevent it from counting the votes, and the state courts agreed.
After that decision, the voters who stood to be disenfranchised by Ritter sued for their rights, represented by the ACLU, in federal court. They argued that the Civil Rights Act prevents states from discarding votes based on “nonmaterial” errors. It frankly doesn’t get any less material than failing to date an envelope that arrived on time.
The US Court of Appeals for the Third Circuit agreed with the voters and allowed the board of elections to count the votes. But Ritter appealed, and Justice Alito issued a temporary stay of that ruling. (Alito, who served on the Third Circuit before being elevated to the Supreme Court, takes the first look at emergency appeals arising from that region.) The full court will now consider whether to weigh in on the case.
I do not think the Supreme Court would, in normal times, decide to pick the winner of a local judicial election in Lehigh, Pennsylvania. But that’s where ghost-hunter Oz comes in. His lawyers have already filed an amicus brief in the Ritter case, urging the Supreme Court to overturn the Third Circuit decision and prevent the county from counting undated but timely ballots.
It’s no surprise why. Oz’s opponent, McCormick, has already asked that undated ballots be counted in the recount of their race, suggesting he thinks they could tip the race for him. But don’t worry. I’m sure McCormick—who blamed Donald Trump for the January 6 insurrection before defending Trump’s actions once he started running for the Senate—will flip-flop on the question of “should we count all the votes?” should he get into a general election where Black people try to vote.
Whether the Supreme Court sides with Oz and Ritter could have implications beyond Pennsylvania. The clerical requirements for voters and especially mail-in or absentee ballots varies widely from state to state; whether you can “cure” or correct a clerical error on a ballot also varies from state to state. If the Supreme Court upholds the Civil Rights Act, this kind of pedantic disenfranchisement should be roundly rejected. Indeed, the idea that people can lose their voting rights in a democracy because they made an immaterial error when addressing an envelope should be offensive to a free people.
But if the court ignores the Civil Rights Act, and reverts to the debased “states’ rights” ideology that the Civil Rights Act was passed to combat, then voter suppression will get stronger, even in states that want to prevent it.
Remember, the Lehigh Board of Elections wanted to count the votes. It was Ritter who sued to prevent counting them. If the Supreme Court sides with Ritter, it will be imposing itself on local election officials and invalidating votes the local officials determined were validly cast. That kind of ruling will disenfranchise voters in any state, red, blue, or battleground, where one of the candidates believes discarding votes will help them win.
Increasingly in American electoral politics, there are only nine votes that matter. If your campaign can convince five justices on the Supreme Court, you barely need to bother trying to convince people who live in your district. In 2000, people were surprised when the Supreme Court picked the president. In 2024, we should expect it.