Ritter v. Migliori

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1 Cite as: 596 U. S. ____ (2022)
A
LITO, J., dissenting
SUPREME COURT OF THE UNITED STATES
No. 21A772
DAVID RITTER v. LINDA MIGLIORI, ET AL.
ON APPLICATION FOR STAY
[June 9, 2022]
The application for stay presented to JUSTICE ALITO and
by him referred to the Court is denied. The order heretofore
entered by J
USTICE ALITO is vacated.
J
USTICE ALITO, with whom JUSTICE THOMAS and
J
USTICE GORSUCH join, dissenting from the denial of the
application for stay.
This application for a stay pending certiorari involves the
counting of undated mail-in ballots in one state-court judi-
cial election. A stay pending certiorari is appropriate only
if the Court is likely to grant review; certiorari is discretion-
ary; and the Court now denies the stay. I would agree with
that decision were it not for concern about the effect that
the Third Circuit’s interpretation of 52 U. S. C.
§10101(a)(2)(B) may have in the federal and state elections
that will be held in Pennsylvania in November.
The Third Circuit’s interpretation broke new ground, and
at this juncture, it appears to me that that interpretation is
very likely wrong. If left undisturbed, it could well affect
the outcome of the fall elections, and it would be far better
for us to address that interpretation before, rather than af-
ter, it has that effect. I would therefore enter a stay pend-
ing certiorari and advise that any petition for certiorari and
brief in opposition should be filed expeditiously. If that is
done, the Court will be in a position to grant review, set an
expedited briefing schedule, and if necessary, set the case
for argument in October.

2 RITTER v. MIGLIORI
A
LITO, J., dissenting
To illustrate why the Third Circuit’s interpretation is suf-
ficiently questionable and important to merit review, I offer
the following thoughts on the interpretation of the statute
in question. As I will explain, it appears to me, based on
the review that I have been able to conduct in the time al-
lowed, that the Third Circuit’s interpretation is very likely
wrong. It seems plainly contrary to the statutory language,
but as is almost always the case when we decide whether to
grant emergency relief, I do not rule out the possibility that
further briefing and argument might convince me that my
current view is unfounded. But with that caveat, I will pro-
ceed to discuss the statutory language.
The statutory provision in question reads as follows:
“No person acting under color of law shall . . . deny
the right of any individual to vote in any election be-
cause of an error or omission on any record or paper
related to any application, registration, or other act
requisite to voting, if such error or omission is not ma-
terial in determining whether such individual is quali-
fied under State law to vote in such election.”
§10101(a)(2)(B).
This provision has five elements: (1) the proscribed con-
duct must be engaged in by a person who is “acting under
color of law”; (2) it must have the effect of “deny[ing]” an
individual “the right to vote”; (3) this denial must be at-
tributable to “an error or omission on [a] record or paper”;
(4) the “record or paper” must be “related to [an] applica-
tion, registration, or other act requisite to voting”; and (5)
the error or omission must not be “material in determining
whether such individual is qualified under State law to vote
in such election.” Ibid.
The Third Circuit held that the failure to count mail-in
ballots that did not include the date on which they were
filled out constituted a violation of this provision, but the

3 Cite as: 596 U. S. ____ (2022)
A
LITO, J., dissenting
Third Circuit made little effort to explain how its interpre-
tation can be reconciled with the language of the statute.
In my view, however, it appears that elements 2 and 5 are
clearly not met.
1
I will start with element 2. When a mail-in ballot is not
counted because it was not filled out correctly, the voter is
not denied “the right to vote.” Rather, that individual’s vote
is not counted because he or she did not follow the rules for
casting a ballot. “Casting a vote, whether by following the
directions for using a voting machine or completing a paper
ballot, requires compliance with certain rules.” Brnovich v.
Democratic National Committee, 594 U. S. ___, ___ (2021)
(slip op., at 16). A registered voter who does not follow the
rules may be unable to cast a vote for any number of rea-
sons. A voter may go to the polling place on the wrong day
or after the polls have closed. A voter may go to the wrong
polling place and may not have time to reach the right place
before it is too late. A voter who casts a mail-in ballot may
send it to the wrong address. A State’s refusal to count the
votes of these voters does not constitute a denial of “the
right to vote.” Even the most permissive voting rules must
contain some requirements, and the failure to follow those
rules constitutes the forfeiture of the right to vote, not the
denial of that right.
Element 5 weighs even more heavily against the Third
Circuit’s interpretation. This element requires that the er-
ror or omission be “material in determining whether such
individual is qualified under State law to vote in such elec-
tion.” There is no reason why the requirements that must
be met in order to register (and thus be “qualified”) to vote
should be the same as the requirements that must be met
in order to cast a ballot that will be counted. Indeed, it
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1
Elements 1 and 3 are satisfied, but for the reasons explained below,
see n. 2, infra, the Third Circuit’s interpretation is not consistent with
the most natural reading of element 4.

4 RITTER v. MIGLIORI
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LITO, J., dissenting
would be silly to think otherwise. Think of the previously
mentioned hypothetical voters whose votes were not
counted because they did not follow the rules for casting a
vote. None of the rules they violated—rules setting the date
of an election, the location of the voter’s assigned polling
place, the address to which a mail-in ballot must be sent—
has anything to do with the requirements that must be met
in order to establish eligibility to vote, and it would be ab-
surd to judge the validity of voting rules based on whether
they are material to eligibility.
Under Pennsylvania law, a person is qualified to vote if
he or she is at least 18 years old on the day of the election,
has been a citizen of the State for at least one month, has
lived in the relevant election district for at least 30 days,
and is not imprisoned for a felony. See 25 Pa. Cons. Stat.
§1301 (2002). Other requirements must be met in order for
a mail-in ballot to be counted. Among other things, a stat-
ute provides that a voter “shall . . . fill out, date and sign” a
declaration printed on the outer security envelope in which
the actual ballot is sealed. S. 422, 2020 Gen. Assem., Reg.
Sess. (Pa.), codified at Pa. Stat. Ann., Tit. 25, §3150.16(a)
(emphasis added); see also Migliori v. Lehigh County Bd. of
Elections, No. 5:22–cv–0397 (ED Pa., Mar. 16, 2022), App.
to Application 23a–24a. The Pennsylvania Supreme Court
has held that the inclusion of the date on which the ballot
was filled out is mandatory and that undated ballots cannot
be counted, see In re Canvass of Absentee and Mail-in Bal-
lots of Nov. 3, 2020 General Election, 241 A. 3d 1058 (Pa.
2020), but the Third Circuit held that this state-law rule is
preempted by 52 U. S. C. §10101(a)(2)(B) because the inclu-
sion of a date is not material to the question whether a per-
son is qualified to vote.
Can that possibly be correct? One may argue that the
inclusion of a date does not serve any strong purpose and
that a voter’s failure to date a ballot should not cause the

5 Cite as: 596 U. S. ____ (2022)
A
LITO, J., dissenting
ballot to be disqualified. But §10101(a)(2)(B) does not ad-
dress that issue. It applies only to errors or omissions that
are not material to the question whether a person is quali-
fied to vote. It leaves it to the States to decide which voting
rules should be mandatory.
The problem with the Third Circuit’s interpretation can
be illustrated by considering what would happen if it were
applied to a mail-in voting rule that is indisputably im-
portant, namely, the requirement that a mail-in ballot be
signed. Pa. Stat. Ann., Tit. 25, §3150.16(a). Suppose a
voter did not personally sign his or her ballot but instead
instructed another person to complete the ballot and sign it
using the standard notation employed when a letter is
signed for someone else: “p. p. John or Jane Doe.” Or sup-
pose that a voter, for some reason, typed his or her name
instead of signing it. Those violations would be material in
determining whether a ballot should be counted, but they
would not be “material in determining whether such indi-
vidual is qualified under State law to vote in such election.”
Therefore, under the Third Circuit’s interpretation, a ballot
signed by a third party and a ballot with a typed name ra-
ther than a signature would have to be counted. It seems
most unlikely that this is what 52 U. S. C. §10101(a)(2)(B)
means.
2
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2
In light of what I have written about elements 2 and 5, it is unlikely
that element 4 must be addressed, but for the sake of completeness, I
will add that the language of that provision must be given a strained
meaning in order to make it applicable to the validity of a rule about
filling out a mail-in ballot. Element 4 demands that a “record or paper”
must be “related to [an] application, registration, or other act requisite
to voting.” 52 U. S. C. §10101(a)(2)(B). A mail-in ballot is a “record or
paper,” and it does not appear to be related in any direct sense to any
“application” or “registration,” so the question is whether it is “related
to” some “other act requisite to voting.” But the casting of a ballot con-
stitutes the act of voting. Indeed, the statute specifies that “the word
‘vote’ includes all action necessary to make a vote effective including . . .

6 RITTER v. MIGLIORI
A
LITO, J., dissenting
For these reasons, it appears to me that the Third Cir-
cuit’s interpretation is very likely incorrect, and I would
grant a stay to preserve the opportunity to review that de-
cision prior to the elections in November.
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casting a ballot, and having such ballot counted.” §10101(e). It is there-
fore awkward to describe the act of voting as “requisite to the act of vot-
ing.”