Don’t count undated ballots, PA Supreme Court says
Court case had origins in 2021 Lehigh County ballot dispute
Undated mail-in ballots will not be counted in the Nov. 8 election, the Pennsylvania Supreme Court ruled Tuesday afternoon.
The decision is the latest in a series of often conflicting judicial decisions in county, state and federal courts over the last year related to whether undated ballots should be counted. The legal maneuvering began with a different yet related case in Lehigh County.
The state Supreme Court issued a two-page order in the current case Tuesday afternoon that appears to be definitive guidance for next week’s election.
“The Pennsylvania county boards of elections are hereby ORDERED to refrain from counting any absentee and mail-in ballots received for the November 8, 2022 general election that are contained in undated or incorrectly dated outer envelopes,” the court said.
“The Court is evenly divided on the issue of whether failing to count such ballots violates” federal law.
The court noted that opinions would be issued later. It also instructed counties to “segregate and preserve any [undated] envelopes.”
Chief Justice Debra Todd and Justices Christine Donohue and David Wecht said counting undated ballots would violate federal law while Justices Kevin Dougherty, Sallie Updyke Mundy and Kevin Brobson would find no violation of federal law. The court has only six members since the death last month of Chief Justice Max Baer, who was 74.
The Pennsylvania Department of State issued a statement Tuesday evening that it is reviewing the court’s order.
It “underscores the importance of the state’s consistent guidance that voters should carefully follow all instructions on their mail ballot and double-check it before returning it.
“Any voter who has already sent in their ballot and is concerned they might have made an error should check with their county elections board or call the Department of State’s year-round voter hotline at 1-877-VOTESPA.”
House Republican leaders praised the Supreme Court decision.
“Dates matter, and the dating of important documents has been a critical tool in officiating the legality of documents for centuries,” Speaker of the House Bryan Cutler and House Majority Leader Kerry Benninghoff said in a statement.
“We thank the Pennsylvania Supreme Court for reconfirming what we have said all along: Pennsylvania’s election law is undeniably clear that mail-in ballots and absentee ballots must be correctly dated to be valid. … Today’s decision is not only a win for the plain language of Pennsylvania law, but also for upholding the security and integrity of our elections.”
The Republican National Committee, National Republican Congressional Committee, Republican Party of Pennsylvania and eight voters sued Acting Commonwealth Secretary Leigh Chapman and the boards of election for the state’s 67 counties on Oct. 16. With the Nov. 8 election approaching, the Republicans said they took the unusual step of asking the Supreme Court to decide, bypassing lower courts.
Under Act 77, the state law that authorized no-excuse, mail-in voting beginning with the 2020 primary, people are required to date outer envelopes for ballots that are mailed or deposited in official ballot boxes set up in counties. In Pennsylvania, Democrats have typically accounted for about three-quarters of mail-in ballots,
Undated ballots were at the center of a dispute in a Lehigh County judicial election in November 2021. After votes were counted, Republican David Ritter led Democrat Zachary Cohen by 71 votes. But 257 voters failed to write a date on the outer envelopes of their ballots, which had all been received before the deadline.
The county Election Board planned to count those ballots, prompting Ritter to ask the county court to prevent the county from counting them.
Lehigh County Judge Edward Reibman, however, determined the ballots should be counted, setting in motion an extended legal battle in state and federal courts.
The ACLU, on behalf of five voters, filed a federal lawsuit in January to require that the county count the ballots. In March, Judge Joseph F. Leeson Jr. of the U.S. Eastern District Court of Pennsylvania rejected the ACLU’s request.
The ACLU then took the case to the U.S. Third Circuit Court of Appeals, arguing that not counting the 257 ballots for such a minor omission disenfranchised voters and violated the Civil Rights Act. The court agreed with the ACLU in May.
Next, Ritter asked the U.S. Supreme Court to temporarily block the count, leading Justice Samuel Alito to delay any count pending further court review. But on June 9, the full court, in a 6-3 vote, declined to hear the case. The county counted the disputed ballots, and Cohen picked up 76 more votes than Ritter to win the judicial seat by five votes.
The six justices in the majority did not explain their decision. However, Alito, with Justices Clarence Thomas and Neil Gorsuch joining him, wrote a dissenting opinion that foreshadowed what was to come.
He said the issue of undated ballots must be decided before Pennsylvania conducts its elections in November.
“I would agree with that decision [to count the votes] were it not for concern about the effect that the Third Circuit’s interpretation of [the state’s mail-in voting law] may have in the federal and state elections that will be held in Pennsylvania in November,” Alito wrote.
Even though the judicial election was settled, Ritter and his legal team continued to seek clarification from the U.S. Supreme Court about whether undated ballots should be counted.
On. Oct. 11, the U.S. Supreme Court dismissed Ritter’s case but offered no clarification whether undated ballots should be counted in the future. The Supreme Court order effectively nullified the appeals court opinion as a precedent because the judicial election had been decided.
The Republicans, in asking the Pennsylvania Supreme Court to prevent the counting of undated ballots, cited that Oct. 11 order as a basis for its lawsuit.
“The U.S. Supreme Court vacated that holding,” the Republicans noted in the lawsuit. “And when addressing a request for a stay earlier in that case, three Justices even opined that the Third Circuit’s holding is ‘very likely wrong’ on the merits because it rests upon a misconstruction of federal law.”
Adam Bonin, a Philadelphia lawyer who represented Cohen in his lawsuit, noted Tuesday in a tweet that elderly voters are generally the ones whose ballots would be disqualified for lack of a date. Of the 257 undated ballots in the 2021 Lehigh County judicial election, 193 were submitted by voters older than 65.
In a different lawsuit filed this spring by voters in the state’s 14th Senate District, which straddles Lehigh and Northampton counties, a settlement was reached where the two counties agreed, among other measures, to alert voters directly or via party representatives if they fail to place mail-in ballots in secrecy envelopes. The voters would then have the option of voting with provisional ballots at their polling places.