Another terrifying case involving voting
rights is set to be decided by the Supreme
Court

another-terrifying-case-involving-votingbrrights-is-set-to-be-decided-by-the-supremebrcourt

The dispute in Ritter v. Migliori is an election case currently pending at the Supreme Court’s
Shadow Docket. It is not worthy of the dignity of a nation’s highest court.

This dispute concerns whether 257 votes cast in a low-level state judicial race should not be
counted because of a minor paperwork error. This also involves an obvious violation of federal
law that states voters shouldn’t be disenfranchised because of such errors.

Yet, this case is a mess. It contains legal arguments that target a lot of federal voting rights laws.
This comes after the Supreme Court spent a decade defending those laws.

David Ritter, a Republican candidate for the Lehigh County Court of Common Pleas is in
Pennsylvania. According to official tallies, he is leading Zachary Cohen by 71 electoral votes.
257 ballots have yet to be counted, enough to possibly flip the race from Ritter and Cohen.

Ritter is asking the Supreme Court for an order to stop these ballots from being counted. This
would lock in his victory. The election was held last November, and the two other judges who won that election were sworn in. However, it is still unclear what the result of the Ritter/Cohen
race will be as the battle over the uncounted ballots continues.

State law stipulates that all voters who mail their ballots must ” date” and sign the envelope. The
state doesn’t care what date the voter wrote on the envelope. It only cares that it is signed.
Envelopes dated “July 4, 1776” or “April 5, 2063” shall be opened and the ballot inside will be
counted. Ritter claims that voters who do not write any date should be disenfranchised.

Ritter’s argument is in contradiction to a federal voting rights law that states that voters shouldn’t
be disenfranchised for making mistakes in paperwork “if such error is not material in determining
if such individual is eligible under State law to vote in such elections.”

This law was created as part of the Civil Rights Act of 1964. It was meant to stop states from
looking through voter paperwork to identify small errors that could be used to disenfranchise
voters. The law can be applied to any state action that removes a voter’s right to vote due to a
requirement for paperwork that is not relevant to the voter’s legal eligibility to vote.

Ritter should, in other words, be an easy case. Although there may be legitimate reasons why
Pennsylvania might require voters to state the date they cast their ballots, a requirement that
voters write any random date on their ballot is not material to determining whether an individual
is eligible to vote under State law.

Judge Paul Matey was a Trump appointee to the US Court of Appeals for the Third Circuit. He
wrote that “no party contests” and that voter statements with incorrect dates were counted
during this election. There is no way to defend a state’s policy of discarding updated ballots but
counting ballots that purport they were cast on “December 25, 0 CE.”

Ritter does raise three legal arguments which could be very damaging to federal voting rights
law. In another era, Ritter’s arguments would not have been heard. This Court is well-known for
being hostile to federal voting rights statutes. In a 2021 dissident opinion, Justice Elena Kagan
stated that her Republican-appointed coworkers have ” treated every statute worse than the
Voting Rights Act.”

The Court has a non-zero chance of transforming this case about a simple dispute into a vehicle
to eliminate much of the American voting rights law.

This case attacks the law that protects voters from minor mistakes in
paperwork

Ritter attempts to claim that the voting rights law in question here does not apply to this case.
However, these arguments are extremely weak. All paperwork errors made by voters are
exempted under the law. This law does not apply to determining whether a voter is eligible to
cast a legal ballot.

Three structural attacks on federal government power to enforce and enact voting rights laws
are his strongest arguments.

Ritter suggests that the voting rights legislation is not constitutional

Ritter’s most assertive legal argument is that Ritter may have violated the Civil Rights Act of
1964.

The Constitution gives Congress wide power to enforce this prohibition.

The Court has stated repeatedly that Congress could enact broad voting rights laws banning
techniques states used in the past to disenfranchise minorities. However, federal laws prevent
states from using these techniques in racially neutral manners. The Court supported, in City of
Boerne (1997), “a suspension of a literacy test and similar voting requirements under
Congress’… power to enforce provisions of the Fifteenth Amendment.”

To prevent states from using literacy test results to target voters of color in their elections,
Congress could enact a blanket ban against all literacy tests being used as a qualification for
voting. In order to stop states from targeting voters based on their race, Congress could also
pass a blanket ban against election rules that disenfranchise voters due to minor paperwork
errors.

The Supreme Court could reverse its decision in Flores or similar cases and cause a major
disruption to voting rights. If a voting rights plaintiff can prove that the tactics used to
disenfranchise voters were intended to target them because of their race, it could open up the
possibility of literacy tests and other tactics being used again to disenfranchise voters.

Ritter asserts that Ritter cannot enforce the Civil Rights Act’s relevant provision unless
the attorney general is involved

Ritter also cites a provision in the voting rights law that allows the US attorney to sue states for
making minor mistakes in paperwork. Ritter claims that only the attorney-general can bring such
suits.

This argument is flawed for several reasons. Federal law provides, among other things that
federal courts that hear voting rights lawsuits under the Civil Rights Act will hear such suits “
regardless of whether the aggrieved has exhausted all other legal remedies. If the attorney
general is the only person allowed to file such lawsuits, it makes no sense to include this
broad-worded provision.

Not to be forgotten, the Voting Rights Bill of 1965 — which is the most important safeguard
against discrimination based on race in elections — also has similar language that allows the
attorney general to file lawsuits. It also includes similar language that indicates that private
parties should have the right to file lawsuits regarding voting rights even if they have exhausted
all other legal remedies.

In a 2021 concurring opinion Justice Neil Gorsuch used a similar argument as Ritter to
undermine the Civil Rights Act. However, Gorsuch focused on the Voting Rights Act. A Trump
judge in Arkansas adopted this narrow reading of federal voting rights law last February. He held
that only an attorney general can file suit to enforce the Voting Rights Act. Clarence Thomas is
the only other justice to publicly support this approach.

It’s an indication that the question of whether to end private plaintiffs in voting rights cases and
give sole authority for enforcement to a single appointee of the federal judiciary is open — at
least to the rightward fringe. Although existing law rejects this narrow reading of the voting rights
statutes by some, at least some Supreme Court members seem eager to discard it.

Ritter wants to end voting rights lawsuits brought on after an election

Ritter then relies on the ” Purcell principle”, which states that federal courts cannot enforce the
Civil Rights Act’s voting rights provision after an election has taken place.

The Court in Purcell (2006) warned federal judges not to alter a state’s electoral law as the
election nears. In Purcell, the Court cautioned federal judges that court orders “can themselves
result in voter confusion… and consequently incentive to stay away from the polls.”

Purcell urged judges not to make decisions too close to elections, but key members of the
Court’s Republican-appointed majority relied upon Purcell to stop voting rights lawsuits being
filed months before Election Day. In Merrill v. Milligan (2022), Justice Brett Kavanaugh, for
example, invoked Purcell in order to justify reinstating an Alabama racially-gerrymandered
congressional grid — despite the fact, that Merrill was decided nine and three months prior to the
next general election.

Ritter asserts that the Purcell principle is ” with more force at the back end of elections,” which
suggests that it may be illegal to bring a lawsuit for voting rights after an election.

This argument would have incredible implications if the Supreme Court accepted it. It is often
not obvious until after an election that the effects of state laws illegally disenfranchising voters
are apparent. When voters expect their votes to count, they are shocked to discover that they
weren’t.

It’s not clear whether the Civil Rights Act applicable in the Ritter matter could be enforced if it
isn’t possible to enforce in post-election proceedings. Federal courts cannot hear lawsuits
challenging federal or state laws unless plaintiffs can prove that they were hurt by the law.

The key point in the Ritter case, however, is that approximately 250 voters made a mistake in
their paperwork that resulted in their ballots being canceled. The state law that required them to
put a date on their ballot envelopes meant these voters didn’t know they were being hurt until
the election. They would have written a date on an envelope if they knew that state law required
them.

Similar to Ritter’s opponent, Zachary Cohen, who is pushing for the count of the disputed
ballots, couldn’t have predicted that the outcome could depend on whether updated ballots were
counted before the election. Cohen’s injury was therefore entirely speculation until the election
took place.

If post-election lawsuits were prohibited, it is probable that no one would have been legally
permitted to challenge Pennsylvania’s requirement for voters to write a date on ballot envelopes.

An alarm should be raised whenever the Court hears a case relating to
voting rights.

The bottom line is that Ritter amounts to a simple violation of a federal statute. This clearly
requires that the 257 disputed votes be counted. Ritter attempts to stop those ballots from being
counted by asking the Court to inflict severe violence on the federal government’s ability to
protect voting rights.

Despite this, it is possible that Ritter’s invitation to repeal this section of federal voting rights law
will be accepted by at least five justices, considering the Court’s past. Ritter’s arguments are
extreme but not less extreme than those that have won favor with the justices.

For example, four justices have agreed to the theory of the “independent State Legislature
doctrine,” which could give gerrymandered state legislators unlimited power to create highly
partisan election legislation, even if they violate the state constitution. Amy Coney Barrett is the
newest justice. She has not yet commented on this theory. It is possible she will vote fifth
because she votes with Court’s right flank in voting cases.

In contrast, the Court’s Voting Rights Act decisions have taken so many liberties with that text —
and the text of the Constitution — that the outcomes seem to be unconstrained by the very basic
rule that words should have meaning. In Brnovich (211) the Court created several new
limitations on the Voting Rights Act, such as the presumption voter restrictions that were
common in 1982 can be lawful. This is not stated in the text of the law. Justice Kagan said to
Brnovich that the majority opinion “mostly occupies a lawless zone.”

This is all to say that the Court often goes out on a limb in order to weaken or strike down voting
rights laws. The Brnovich judges could also accept the extreme arguments of Ritter.

This is not likely to be the outcome of Ritter. However, this Court makes it difficult to predict the
outcome of any case that affects voting rights.