The dispute in Ritter v. Migliori, an election case currently pending on the Supreme Court’s shadow docket, is beneath the dignity of a nation’s highest court.
It involves a fight over whether 257 ballots cast in a low-level state judicial race should be tossed out because of a very minor paperwork error. It also involves a fairly obvious violation of a federal law providing that voters should not be disenfranchised due to such errors.
And yet, this nothingburger of a case features legal arguments that target much of what remains of federal voting rights laws, after the Supreme Court spent the last decade taking a hatchet to those laws.
David Ritter is a Republican candidate for a judgeship on the Lehigh County Court of Common Pleas in Pennsylvania. Official tallies show him leading Democrat Zachary Cohen by 71 votes. Meanwhile, 257 ballots remain uncounted — enough to potentially flip the race from Ritter to Cohen.
Ritter wants the Supreme Court to prevent these ballots from being counted, thus locking in his victory. And, while the election took place last November and two other judges who prevailed in that election have already been sworn in, the outcome of the Ritter/Cohen race remains uncertain as the fight over these uncounted ballots drags on.
A state law provides that voters who cast their ballots by mail shall “date and sign” the envelope accompanying their ballot. Significantly, however, the state does not care which date the voter writes on this envelope — only that a date is written upon it. Envelopes that are dated “July 4, 1776” or “April 5th, 2063” will be opened and the ballot within shall be counted. But Ritter argues that voters who fail to write any date should be disenfranchised.
Ritter’s argument conflicts with a federal voting rights law, which provides that voters should not be disenfranchised due to paperwork errors “if such error or omission is not material in determining whether such individual is qualified under State law to vote in such election.”
This law, which was enacted as part of the Civil Rights Act of 1964, was intended to prevent states from hunting through paperwork filed by voters of color to find small errors that could then be used to disenfranchise those voters. But the law is written broadly to apply to any state action that would strip someone of the right to vote because of a paperwork requirement that is irrelevant to whether the voter is legally qualified to vote.
Ritter in other words, should be an extremely easy case. Even if there might be a legitimate reason why Pennsylvania could require voters to accurately state the date when they cast their ballot, a requirement that voters must write any random date on their ballot envelope is “not material in determining whether such individual is qualified under State law to vote.”
As Judge Paul Matey, a Trump appointee to the United States Court of Appeals for the Third Circuit, wrote about this case “no party contests that voter declarations with inaccurate dates were counted in this election.” There’s no way to defend a state policy that discards undated ballots, but which counts ballots that purport to have been cast on “December 25, 0 CE”
Nevertheless, Ritter raises three legal arguments that could do considerable violence to federal voting rights law. His arguments would have gained no traction in another era. But this Court is notoriously hostile to federal voting rights statutes. As Justice Elena Kagan wrote in a 2021 dissenting opinion, her Republican-appointed colleagues have “treated no statute worse” than the Voting Rights Act.
There is a non-zero risk, in other words, that the Court could transform this low-stakes case, about an entirely clearcut dispute, into a vehicle for gutting much of what remains of American voting rights law.
The case makes aggressive attacks on the law protecting voters with minor paperwork errors
Although Ritter attempts to argue that the voting rights law at issue in this case does not apply to the facts of this case, those arguments are exceedingly unpersuasive. The law excuses all paperwork errors by voters that are “not material in determining whether such individual is qualified under State law to vote.” A requirement that voters write any random date that they choose on an envelope is not relevant to determining whether a voter can lawfully cast a ballot.
His strongest arguments — strong, not because they are consistent with current law but because they could persuade many of the justices on this highly politicized Court — involve three structural attacks on the federal government’s power to enact and enforce voting rights laws.
Ritter suggests that the voting rights law is unconstitutional
Ritter’s most aggressive legal argument is that the provision of the Civil Rights Act of 1964 at issue in this case may be unconstitutional.
The Constitution gives Congress nearly limitless power to set the rules governing congressional elections, but its power to regulate state and local elections like the judicial race at issue in Ritter is narrower. As Ritter’s lawyers write in their brief, “though Congress can modify state regulations of federal congressional elections ... its power to modify state regulations of state elections can be justified only under its power to enforce the Fourteenth and Fifteenth Amendments.”
That statement is true as far as it goes, but it also does not undercut the constitutionality of the Civil Rights Act. The 15th Amendment prohibits states from denying the right to vote “on account of race, color, or previous condition of servitude,” and it also gives Congress broad power to enforce this prohibition.
Indeed, the Court has repeatedly said that Congress may enact broad voting rights laws that ban techniques that states have used in the past to disenfranchise racial minorities, even if those federal laws also prevent states from using those techniques in racially neutral ways. In City of Boerne v. Flores (1997), for example, the Court endorsed “a suspension of literacy tests and similar voting requirements under Congress’ ... power to enforce the provisions of the Fifteenth Amendment.”
That is, to prevent states from using literacy tests to target voters of color, Congress may enact a blanket ban on all literacy tests as a voter qualification. It follows that Congress may also enact a blanket ban on election rules that disenfranchise voters for minor paperwork errors, in order to prevent states from using these errors to target voters because of their race.
If the Supreme Court were to back away from the rule it announced in Flores and similar cases, that could be a catastrophe for voting rights. It could reopen the door to literacy tests and other tactics that were historically used to disenfranchise voters, unless a voting rights plaintiff could prove that these tactics were being deployed specifically to target voters because of their race.
Ritter claims that the relevant provision of the Civil Rights Act can only be enforced by the attorney general
Ritter also points to a provision of the voting rights law at issue in this case, which allows the US attorney general to file suit against states that target voters who make minor paperwork errors, and claims that only the attorney general may bring such suits.
This argument is wrong for many reasons. Among other things, federal law also provides that federal courts hearing voting rights suits brought under the Civil Rights Act shall hear those suits “without regard to whether the party aggrieved” has exhausted other possible legal remedies. It makes no sense to include this broadly worded provision if the only party that is allowed to file such a lawsuit is the attorney general.
It is worth noting that the Voting Rights Act of 1965 — the single most important safeguard against race discrimination in elections — also contains similar language permitting the attorney general to file lawsuits. And it also contains similar language indicating that private parties should be able to bring voting rights lawsuits even if they haven’t exhausted other legal remedies.
Indeed, in a 2021 concurring opinion, Justice Neil Gorsuch made a very similar argument to the one Ritter makes to undercut the Civil Rights Act, though Gorsuch targeted the Voting Rights Act. And, last February, a Trump judge in Arkansas embraced this narrow reading of federal voting rights law — holding that only the attorney general may file suits enforcing the Voting Rights Act. So far only one other justice, Clarence Thomas, has publicly shown support for this approach.
But it’s a sign that the question of whether to cut off voting rights suits by private plaintiffs, and give sole authority to enforce such suits to a single political appointee, is an open one — at least among the rightward fringe of the federal judiciary. Existing law rejects this limited reading of voting rights statutes, but at least some members of the Supreme Court appear eager to toss out existing law.
Ritter wants to shut down voting rights suits brought after an election
Finally, Ritter relies on something called the “Purcell principle” to argue that federal courts may not enforce the voting rights provision of the Civil Rights Act after an election has already taken place.
In Purcell v. Gonzalez (2006), the Court warned federal judges to be cautious about altering a state’s election law as the election draws close. “Court orders affecting elections ... can themselves result in voter confusion and consequent incentive to remain away from the polls,” the Court warned in Purcell, and this risk increases “as an election draws closer.”
Though Purcell simply urged judges to exercise caution when handing down decisions close to an election, key members of the Court’s Republican-appointed majority have relied on Purcell to shut down voting rights lawsuits months before Election Day. Concurring in Merrill v. Milligan (2022), for example, Justice Brett Kavanaugh invoked Purcell to justify reinstating a racially gerrymandered congressional map in Alabama — despite the fact that Merrill was decided nine months before the next general election and three months before the next primary.
Ritter claims that this Purcell principle operates “with much more force on the back end of elections,” suggesting that voting rights lawsuits brought after an election may be impermissible.
If the Supreme Court were to embrace this argument, the implications would be breathtaking. The impact of state laws that illegally disenfranchise voters often are not apparent until after an election has taken place, when voters who expected their votes to be counted are surprised to learn that they were not.
It is far from clear that the provision of the Civil Rights Act relevant in the Ritter case could be enforced at all if it can’t be enforced in post-election proceedings. Federal courts are not allowed to hear a lawsuit challenging a state or federal law unless the plaintiff in that lawsuit can show that they were injured in some way by that law.
But the crucial point in the Ritter case is that about 250 voters inadvertently made a paperwork error that caused their ballots to be set aside. These voters couldn’t possibly have known that they were injured by the state law calling for them to write a date on the ballot envelope until after the election took place. And, if they had known that the state law required them to write a date on the envelope, they would have simply written a date on the envelope rather than challenging the state law in federal court.
Similarly, Zachary Cohen — Ritter’s opponent who is now pushing to get the disputed ballots counted — couldn’t have known that the outcome of the election could turn upon whether undated ballots are counted until after the election took place. Cohen’s injury, in other words, was entirely speculative until after the election had already happened.
Thus, if post-election lawsuits are forbidden, it is likely that no one would have been legally permitted to challenge Pennsylvania’s requirement that voters must write a date on their ballot envelopes.
Any time this Court hears a voting rights case is a cause for alarm
The bottom line is that Ritter involves a straightforward violation of a federal statute, which clearly requires the 257 disputed ballots to be counted. In his attempt to prevent those ballots from being counted, Ritter asks the Court to do considerable violence to the federal government’s power to protect voting rights.
And yet, given this Court’s history, it is entirely possible that at least five justices will take Ritter up on his invitation to gut this part of federal voting rights law. The arguments raised by Ritter are extreme, but they aren’t less extreme than the kinds of arguments that have already earned favor with the justices.
Four justices, for example, have signed onto a theory known as the “independent state legislature doctrine,” which would potentially give gerrymandered state legislatures limitless power to write highly partisan election laws — even if those laws violate the state’s constitution. The newest justice, Amy Coney Barrett, has not yet weighed in on this theory. But it is entirely possible that she will provide the fifth vote for it because she typically votes with the Court’s right flank in voting rights cases.
The Court’s Voting Rights Act decisions, meanwhile, have taken such liberties with the text of that law — and with the text of the Constitution — that their outcomes seem unconstrained by very basic rule that words are supposed to have meaning. In Brnovich v. DNC (2021), for example, the Court invented several new limits on the Voting Rights Act — such as a presumption that voter restrictions that were common in 1982 are lawful — which appear nowhere in the law’s text. As Justice Kagan wrote of Brnovich, the majority opinion “mostly inhabits a law-free zone.”
All of which is a long way of saying that, this Court frequently goes out on a limb to strike down or weaken voting rights laws. And the kind of judges who brought us Brnovich could also embrace the fairly extreme arguments presented in Ritter.
This is probably not the most likely outcome in Ritter. But, in this Court, it is dangerous to predict that any case will end well for voting rights.