State Supreme Court to hear new legal argument in favor of counting undated ballots
Decision to come before Nov. 5 election
If you forget to put a date on your mail-in ballot envelope, as required by law, will your vote count?
That’s what the Pennsylvania Supreme Court will decide as it considers an appeal from a lower court that said ballot envelopes without a date or the wrong date 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,” Commonwealth Court’s decision of Aug. 30 said.
The vote was 4-1, with judges Renee Cohn Jubilirer, Michael H. Wojcik and Matthew S. Wolf joining Judge Ellen Ceisler, who wrote the 94-page opinion. Judge Patricia A. McCullough cast the no vote.
The lawsuit was filed May 28 by 10 voting rights organizations, led by Black Power Empowerment, against Commonwealth Secretary Al Schmidt and Philadelphia and Allegheny counties.
Another voting rights case, originating in Butler County, may also end up in the state Supreme Court. At issue is whether the county should allow voters whose mail ballots were rejected to vote by a provisional ballot at the polls on Election Day.
Pennsylvania’s universal vote-by-mail was authorized by Act 77 in 2019, when the bill 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 receiving the ballots so they know the votes are turned in by Election Day. They contend ballots should not be tossed because of a minor oversight, characterizing it as disenfranchisement of voters.
However, the most recent decision, in March by 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.
Pennsylvania not alone when it comes to rejected mail-in ballots
In the case now before the state Supreme Court, lawyers from ACLU-Pennsylvania, the Public Interest Law Group of Philadelphia and others took a different approach on behalf of the voting rights groups. 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.
“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,” its opinion said.
The dissenting opinion
In her 56-page dissenting 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.
State and national Republicans, who support enforcement of the law's ballot-dating requirements, picked up on McCullough’s point in 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.”
But Brent Landau, executive director of the Public Interest Law Center, indicated the court’s decision has statewide ramifications.
“This decision has strengthened the right to vote in Pennsylvania,” he said in a statement after the court released its ruling. “Mail ballots will no longer be rejected because of a meaningless requirement to fill out a date that isn’t used for anything. As the birthplace of modern democracy, Pennsylvania has a long tradition of free and equal elections, and today’s decision adds to that legacy.”
The Commonwealth Court heard this case on an expedited schedule, and the Supreme Court said it will hear the appeal more quickly as well so it can rule before the Nov. 5 election.
Butler County case
Two Butler County residents, Frank Matis and Faith Genser, voted by mail in the April 23 primary and placed their ballots directly in the outer envelope, forgetting to place them first in the secrecy envelope, according to court records.
The voters were notified by email from the state election computer system that their ballots were rejected and were told they could request new mail ballots by April 16 or vote with a provisional ballot at the polls on April 23, the day of the primary. They voted in person but were later told by the county that their provisional ballots would not be counted.
The pair challenged the decision in Butler County Court but lost when the judge agreed with the county's decision. The voters appealed to Commonwealth Court, which decided on Sept. 5 that the votes should be counted.
County Commissioner Kimberly Geyer told Votebeat Pennsylvania that the county would appeal the decision to the state Supreme Court.