Will there be more confusion over dates on mail-in ballots?
Pa. Supreme Court opinion may lead to more uncertainty
A week before Election Day last year, Pennsylvania’s Supreme Court ordered counties to refrain from counting mail-in ballots that lacked a voter’s proper handwritten date as required by state law.
The court, in its two-page order, gave no reason for the decision but indicated it would eventually issue an opinion that explained why.
Well, the court did just that three months later – on Feb. 8.
The majority opinion by Justice David Wecht clearly reaffirmed the court’s Nov. 1, 2022, directive that undated ballots cannot be counted.
But the opinion may create more confusion for county election boards over handling future mail-in or absentee ballots that possibly contain incorrect dates.
Voters have a timeframe before an election – a range of two weeks or so that varies among counties – in which to submit ballots by mail. Sometimes voters put the incorrect date that may fall inside or outside of that period.
Wecht wrote that “county boards of elections retain authority to evaluate the ballots that they receive in future elections … for compliance with the Election Code.”
Determination of whether a date is correct is up to county election boards, the judge wrote.
“How county boards are to verify that the date an elector provides is, in truth, the day upon which he or she completed the declaration is a question that falls beyond our purview.”
Chris Borick, director of the Muhlenberg College of Public Opinion in Allentown, noted the problem for the 67 county election boards.
“The PA Supreme Court decision provides some clarity on the treatment of undated mail ballots, but leaves a great deal of uncertainty about the evaluation of dates on ballots moving forward,” he wrote in an email in response to questions from Armchair Lehigh Valley.
“In essence the courts have opted to throw evaluations of ballot dates to the discretion of county officials, thus allowing for significant variation on this matter across counties. Without legislative action before upcoming elections it's likely there will be significant controversy and legal challenges about the decision rules counties utilize in evaluating the dates on mail ballots.”
Justice Kevin Brobson, in a separate opinion, potentially adds to confusion about ballots and dates, noting just because a ballot contains a correct date doesn't mean that it should be counted.
“It would be wrong to interpret this Court’s disposition … as a tacit ruling that all ballots with a facially correct date — i.e., a date that falls within the range of the possible — must ipso facto be counted. To the contrary, while a ballot that contains a facially invalid date cannot be counted, a ballot that contains a facially valid date remains subject to scrutiny under the canvassing procedures set forth in [state law],” he wrote.
Northampton County Executive Lamont McClure said a county lawyer will examine the state court’s opinion.
“The Solicitor for the Elections Commission will review the Supreme Court’s ruling and provide legal guidance to both our Elections Division and Elections Commission. Northampton County will also receive and consider any guidance provided by the Pennsylvania Department of State,” he wrote in an email.
“In the meantime, Northampton County will continue its robust program of educating voters about the proper procedures to follow with respect to returning their ballots including perpetuating the practice of highlighting the signature and date lines on the outer envelope.”
The lawsuit over undated ballots was filed before last November's election by the national and state Republican parties against acting Commonwealth Secretary Leigh Chapman and the state’s 67 counties.
Meanwhile, a federal lawsuit in the U.S. District Court of Western Pennsylvania seeks to require the state to count defective mail-in ballots. The NAACP and the Pennsylvania League of Women Voters and other voting rights groups filed the lawsuit last November against Pennsylvania. The case is pending.
In the most recent election on Nov. 8, nearly 1,300 voters in Lehigh and Northampton counties saw their mail-in ballots rejected over technical mistakes regarding secrecy envelopes, signatures and dates, according to statistics compiled by the Pennsylvania Department of State.
Statewide, 16,154 voters saw mail-in ballots rejected.
A Joint State Government Commission advisory board examined problems with Act 77, the state law that authorized no-excuse, mail-in voting beginning with the 2020 primary. Voters are required, among other things, to date outer envelopes for ballots that are mailed or deposited in official ballot boxes.
The commission report, issued last month, recommended making secrecy envelopes voluntary and said incorrect dates or undated envelopes should not automatically disqualify ballots.
State Sen. Lisa Boscola, D-Northampton, included the report’s recommendations in a legislative package that she intends to introduce on election reform.
In his opinion, Wecht recounted how the mail-in ballot issue landed before the state Supreme Court.
Before the 2020 election, a divided state Supreme Court ruled that “non-compliant ballots” should be counted in that election, he wrote.
After that, in other lawsuits about whether mail-in ballots didn't comply with the requirements, the state Commonwealth Court offered conflicting opinions.
Then, a case involving Lehigh County’s 2021 judicial election, worked its way through the courts, ultimately reaching the U.S. Supreme Court.
After votes were counted in that 2021 judicial contest, 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 2022 to require that the county count the ballots. Two months later, 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 error disenfranchised voters and violated the Civil Rights Act. The court agreed with the ACLU in May 2022.
That prompted Ritter to ask the U.S. Supreme Court to temporarily block the count; Justice Samuel Alito agreed and ordered a delay of 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 conducted elections last 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, 2022, 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.
And then, a few weeks later, the state Supreme Court said ballots missing a date could not be counted.