State court rejects challenge to overturn Pa. mail-in voting law
A Republican attempt to invalidate Pennsylvania’s mail-in voting law was rejected by the state’s Commonwealth Court Tuesday.
Fourteen state legislators filed a lawsuit 11 months ago seeking to abolish the 2019 mail-in voting law (Act 77) because other court rulings, including one involving Lehigh County, permitted ballots without a required date on the outer envelope to be counted.
The Republican lawmakers, 11 of whom had voted in favor of the bipartisan-supported Act 77, argued that the entire law should be declared null. They contended that because courts had decided undated ballots could be counted, the entire law therefore should be struck down.
The Commonwealth Court, in its 5-0 decision dismissing the Republicans’ complaint, rejected that argument.
President Judge Renee Cohn Jubelirer wrote in the court’s opinion that other court decisions “did not invalidate the Dating Provisions, which remain a part of the Election Code. Rather, those Courts performed their constitutional obligation to engage in statutory interpretation in resolving the matters before them.”
This decision comes at a time when Republicans, both nationwide and in Pennsylvania, are encouraging GOP voters to consider mail-in voting, which has overwhelmingly been used by Democrats.
Meanwhile, despite the ruling, the on-again, off-again issue of counting undated Pennsylvania ballots is still unresolved more than 18 months after the initial court challenge was filed in Lehigh County.
The Lehigh case began after the November 2021 election, when a seat on the county court remained vacant for seven months while the vote was in dispute over whether to count 257 undated mail-in ballots. All of the contested ballots had been received by the deadline. At the time, Republican David Ritter led Democrat Zachary Cohen by 71 votes.
A federal appeals court eventually decided in 2022 that the undated ballots should be counted, citing an argument made by the ACLU that such a minor oversight by a voter should not take away their vote. Ritter appealed to the U.S. Supreme Court, which eventually declined to hear his case, clearing the way for Lehigh County to tabulate the undated ballots.
When those ballots were counted in June 2022, Cohen pulled ahead by five votes to win the election.
Cohen wins Lehigh County judicial election by 5 votes (substack.com)
Even though the election was decided, Ritter continued to press his case before the U.S. Supreme Court, which in October 2022, tossed out the appeals court decision to count undated ballots because the election had been settled. It did not decide the issue of whether to count undated ballots.
A week before Election Day last year, Pennsylvania’s Supreme Court, in another case, ordered counties to refrain from counting undated mail-in ballots. That prompted then-Acting Commonwealth Secretary Leigh Chapman to direct counties to ignore undated mail-in ballots.
The Pennsylvania Chapter of the NAACP sued in the U.S. District Court of Western Pennsylvania to require that undated ballots be counted. The court has yet to rule in the case.
Will there be more confusion over dates on mail-in ballots? (substack.com)
In her opinion Tuesday, Commonwealth Court Judge Cohn Jubelirer referenced the federal lawsuit and the unsettled question of counting undated ballots. “Indeed, it remains a subject of ongoing litigation in the federal courts,” she wrote.
Commonwealth Court Judge Patricia A. McCullough, in her concurring opinion, said it’s essential that the state resolve the issue involving undated ballots.
“The right of suffrage is a fundamental constitutional right as recognized by the Election Code. The citizens of Pennsylvania are entitled to elections that are fair and orderly and to be fully informed of the electoral process. … The remaining state of flux confronting Pennsylvania citizens requires immediate establishment of clear direction in conformance with constitutional standards.”
Concurring opinion by Judge Patricia A. McCullough