Pa. Supreme Court: Don't count undated or misdated mail ballots
Pa. Supreme Court: Don't count undated or misdated mail ballots
Pennsylvania Supreme Court, in a brief order issued Friday afternoon, said undated or misdated mail ballots should not be counted.
The Supreme Court, in a 4-3 vote, said the lower court could not review the issue because only two of the state’s 67 counties – Philadelphia and Allegheny – were named in the complaint.
The decision came two weeks after the Commonwealth Court decided 4-1 that such ballots should be counted. “We declare that strict enforcement of the dating provisions to reject timely submitted but undated or incorrectly dated absentee and mail-in ballots is unconstitutional under the free and equal elections clause [of the state’s constitution],” Commonwealth Court’s decision of Aug. 30 said.
Supreme Court Justice David Wecht dissented with a short statement in which he referenced the state constitutional issue.
“A prompt and definitive ruling on the constitutional question presented in this appeal is of paramount public importance inasmuch as it will affect the counting of ballots in the upcoming general election,” he wrote. The election is set for Nov. 5.
Wecht was joined in his dissent by fellow Democrats Chief Justice Debora Todd and Justice Christine Donohue. Democrats have a 5-2 edge on the court, but Democratic Justices Kevin Dougherty and Daniel McCaffrey joined Republicans Sally Updyke Mundy and Kevin Brobson to form the majority in this case.
The Republican Party of Pennsylvania and the Republican National Committee appealed the decision to the state Supreme Court. Officials from either group could not be reached for comment.
The legal team that brought the case on behalf of 10 voting rights organizations to Commonwealth Court included the Public Interest Law Center of Philadelphia and the ACLU-Pennsylvania.
“This was not a decision on the merits of the case, whether or not it was constitutional to reject timely received ballots," said Mimi McKenzie, the law center’s legal director, in an interview Friday evening.
She said the legal team is considering its next step to have a court consider the constitutional issue.
Steve Loney, ACLU-Pennsylvania’s senior supervising attorney, said in a statement, “Today’s procedural ruling is a setback for Pennsylvania voters, but we will keep fighting for them. These eligible voters who got their ballots in on time should have their votes counted and voices heard. The fundamental right to vote is among the most precious rights we enjoy as Pennsylvanians, and it should take more than a trivial paperwork error to take it away.”
The lawsuit was filed May 28 by the 10 organizations, led by Black Power Empowerment, against Commonwealth Secretary Al Schmidt and Philadelphia and Allegheny counties.
Pennsylvania’s universal vote-by-mail was authorized by Act 77 in 2019 when the bill was passed by a bipartisan vote of the state Legislature and signed into law by Democratic Gov. Tom Wolf. Mail voting, first used in 2020, has been more widely chosen by Democrats by about a 3-1 margin over Republicans.
But ballots have been rejected because voters failed to write a date or wrote an incorrect date on the outer envelope, as required by law.
In the 2022 general election, nearly 10,000 ballots were rejected because of such errors, according to court filings in the case. In 2023, that figure was nearly 7,000; in the 2024 primary, thousands were rejected as counties followed guidance from the Department of State to refrain from counting undated ballots.
Over the last three years, mail ballot issues have led to a half-dozen lawsuits filed in local, state and federal courts. Decisions have gone both ways, with some judges deciding ballots with undated or envelopes should be counted and other judges saying the ballot should be rejected.
Voting rights advocates say dating the envelope is meaningless because counties log the date and time when the ballots are received. That way election officials are certain the ballots are turned in by Election Day. They contend ballots should not be tossed out because of a minor oversight, characterizing it as disenfranchisement of voters.
However, in March the U.S. Third Circuit of Appeals in Philadelphia said Act 77 is explicit in its instructions that outer envelopes must be dated and signed. Without either, the ballots should not be counted.
The court rejected the argument by voting rights groups that the 1964 U.S. Civil Rights Act “prohibits disqualifying voters due to paperwork mistakes on required forms that aren’t relevant to the voters’ eligibility.”
The case is back with the original court, the U.S. District Court of Western Pennsylvania, as the voting rights groups, led by the Pennsylvania NAACP, filed an amended complaint raising additional constitutional issues why undated ballots should be counted. They also plan to ask the U.S. Supreme Court to consider the case.
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In the current case ruled on by the state Supreme Court, lawyers took a different approach. Their case relies on a clause in the Pennsylvania Constitution that states, “Elections shall be free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.”
The Commonwealth Court majority agreed with that reasoning in a 4-1 vote. President Judge Renee Cohn Jubilirer and Judges Michael H. Wojcik and Matthew S. Wolf joined Judge Ellen Ceisler, who wrote the 94-page opinion. Judge Patricia A. McCullough cast the no vote.
“Simply put, the refusal to count undated or incorrectly dated but timely received mail ballots submitted by otherwise eligible voters because of meaningless and inconsequential paperwork errors violates the fundamental right to vote recognized in and guaranteed by the free and equal elections clause of the Pennsylvania Constitution,” the majority opinion said.
In her dissenting, 56-page opinion, McCullough said the majority was wrong to accept the “free and equal” clause as justification for their decision to count questionable ballots.
“The members of the Majority have discarded their judicial robes and donned legislative hats to re-write both the Free and Equal Elections Clause and Act 77, all so that they might invalidate the simplest and perhaps least burdensome of all ballot-casting requirements,” she said.
McCullough also said the decision applied to only Allegheny and Philadelphia counties because the state’s other 65 counties were not part of the lawsuit – an issue noted in the state Supreme Court order.
State and national Republicans, who support enforcement of the law's ballot-dating requirements, picked up on McCullough’s point in a brief filed in the appeal to the Supreme Court: “The result is that different counties within Pennsylvania will be counting ballots based on different standards – a distinction that is arbitrary and disparate, and therefore, a clear Equal Protection violation.”