Update: GOP appeals federal judge's ruling invalidating date requirement on mail-in ballots
Ruling that included Lehigh, Northampton counties led state to alter guidance on issue
Update: In an expected move, the Republican National Committee, the National Republican Congressional Committee and the Republican Party of Pennsylvania on Dec. 6 appealed Judge Susan Paradise Baxter’s ruling to the federal 3rd Circuit Court of Appeals, which is based in Philadelphia.
A federal judge’s ruling invalidating the date requirement on mail-in ballots has led the state to give counties the go-ahead to tally ballots with missing or incorrect dates.
Judge Susan Paradise Baxter of the Western Pennsylvania District issued a 77-page opinion on Nov. 21 that said the rejection of such ballots violates the materiality provision of the 1964 Civil Rights Act. Lehigh and Northampton were among the 12 county defendants.
The ruling – one in a string on the issue – could be appealed and eventually end up before the U.S. Supreme Court. If so, it could settle an issue that was central to a Lehigh County lawsuit over a 2021 judicial race involving Republican David Ritter, Democrat Zachary Cohen and 275 undated ballots.
Still, the decision led the Pennsylvania Department of State, which oversees elections, to tell counties to disregard previous guidance that advised counties to set aside and not count ballots with problem dates.
Some counties, including Lehigh, included those ballots in their certification of Nov. 7 results.
The ruling
Baxter’s ruling pertained to a lawsuit filed in November 2022 by six voting rights advocacy groups and five individual voters.
All county boards of election in Pennsylvania were originally named as defendants but the plaintiffs were found to have standing for only 12.
Besides Lehigh and Northampton, they include Allegheny, Berks, Bucks, Lancaster, Montgomery, Philadelphia, Washington, Warren, Westmoreland and York counties.
Secretary of State Al Schmidt, then with an acting title, was also named as a defendant in the suit. The Republican National Committee, the National Republican Congressional Committee and the Republican Party of Pennsylvania sought and were granted approval to join as defendants.
The lawsuit centered on the requirement in Pennsylvania’s Act 77 that return envelopes, which contains secrecy envelopes with ballots, must be signed and dated.
Some 7,600 voters in the 12 counties saw their ballots rejected over dates in November 2022, the opinion said. That included 390 in Lehigh and 280 in Northampton. Reasons included writing down wrong months, wrong years, birth dates and dates outside the timeframe for returning the ballots.
Baxter said the date requirement is irrelevant in determining when the voter signed their declaration.
“In fact, there is no indication on the ballot that the voter’s declaration and the date must be the same day,” she wrote. She noted that a voter could fill out a ballot on Oct. 19, sign it on Oct. 20 and mail it on Nov. 2.
Baxter said counties didn’t rely on the date on the outer envelope to determine when a ballot was received in the Nov. 8, 2022, election.
Instead, they used the state’s Statewide Uniform Registry of Electors, which assigns each voter an individual bar code, which, for mail-in voters, appears on return envelopes.
“When the ballot is received, the county boards of elections stamp or otherwise mark the return envelope with the date of receipt to confirm its timeliness and then log it into the SURE system.”
Baxter also stated that the requirement of dating the outer return envelope has nothing to do with determining a voter’s qualifications to vote.
Baxter dismissed the plaintiffs' claim that their rights were violated under the equal protection clause of the 14th Amendment.
Ties to Lehigh County case
Baxter’s decision heavily refers to Migliori et al. vs. the Lehigh County Board of Elections and the reasons why the U.S. Third Circuit Court of Appeals said rejecting such ballots violates the materiality provision of the 1964 Civil Rights Act.
“This court considers the reasoning and analysis set out in Migliori to be persuasive, if not precedential,” Baxter wrote.
The provision states “no person acting under color of law shall…deny the right of any individual to vote in any election because of an error or omission…if such error or omission is not material in determining whether such individual is qualified.”
In seeking a summary judgment, Berks, Lancaster and the RNC argued that the plaintiffs had no right to private action and the date requirement did not violate federal law.
Migliori concerns a November 2021 race where Ritter, a Republican, and Cohen, a Democrat, were seeking a third county judicial seat.
Ritter was ahead of Cohen by 71 votes when he learned the county planned to count an additional 257 ballots with date issues. He filed a lawsuit, losing in Lehigh County Court, but winning in the state Commonwealth Court. The state Supreme Court opted against hearing the case, effectively agreeing with the Commonwealth Court.
Next, the ACLU, on behalf of the five voters, filed a federal lawsuit in January 2022 to require Lehigh to count the ballots. In March 2022, Judge Joseph F. Leeson Jr. of the U.S. Eastern District Court of Pennsylvania rejected the request.
The ACLU took the case to the U.S. Third Circuit Court of Appeals, winning its case in May 2022.
Ritter then 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 saying the issue of undated ballots must be decided before the November 2022 election.
Even though the judicial election was settled, Ritter sought clarification from the U.S. Supreme Court.
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.
After a Republican-led plea, the state Supreme Court on Nov. 1, 2022, ordered counties to refrain from counting any absentee and mail-in ballots received for the Nov. 8, 2022, with date issues.
With the court evenly divided because of a vacancy, the order did not settle the legal question over Act 77’s date provision.
That set the stage for NAACP v. Schmidt, which was filed by the Pennsylvania State Conference of the NAACP, Black Political Empowerment Project, Common Cause Pennsylvania, League of Women Voters of Pennsylvania, Make The Road Pennsylvania, and POWER Interfaith along with five individual lawyers. They were represented by the American Civil Liberties Union of Pennsylvania, ACLU National and the law firm Hogan Lovells.
What the ruling means
The ACLU maintains that the ruling means that mail-in ballots with incorrect or missing dates must be counted.
“... the federal court declared the law on a federal statutory issue so it is our position that counties who do not count ballots missing a handwritten date or having an ‘incorrect’ date are violating federal law,” Marian K. Schneider, the ACLU’s senior policy counsel for voting rights, said in an email.
As a result of Baxter’s decision, the Department of State told counties to disregard the guidance it had issued in November 2022 to separate and not count ballots with date issues, according to a department statement issued on Tuesday. The state further advised counties to consult with solicitors on questions about the Nov. 7 election.
Some counties, including those named in the lawsuit, included the ballots with missing or incorrect dates in their certified tallies for Nov. 7. They include Lancaster, Bucks and York. Berks decided on Monday to hold off on certifying the results pending further review.
Lehigh had prepared for its Board of Election to vote with or without the ballots with date issue, but voted to include them, said Timothy Benyo, chief election clerk. The inclusion did not change any outcomes.
At last week’s Northampton County Election Commission meeting, solicitor Richard Santee said the Baxter decision would not affect the Nov. 7 election certification. County officials could not be reached to clarify the county’s future plans.
NAACP v. Schmidt is part of a cluster of challenges that had been filed since Pennsylvania voters began using mail-in voting in 2020.
They have included Republican-backed efforts that have failed so far to have the law declared illegal – challenges rooted in distrust that began when presidential election results in 2020 showed then-President Trump in the lead over Democrat Joe Biden until mail-in ballots were counted.
Since then, Democrats have dominated Republicans in the use of mail-in ballots, something that Republican leaders said this year that they want to change.
Beyond questions about improperly dated ballots, there have also been challenges over missing secrecy envelopes, one involving in Lehigh and Northampton counties that led them to agree to alert voters if they are missing secrecy envelopes or have wrong dates. The law does not require counties to let voters know if they have issues with their ballots and not all do.