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HARRISBURG — Pennsylvania’s highest court has directed three counties not to include undated or misdated mail ballots in their November election results.
Such ballots have been the subject of years of litigation in various courts, and became an issue again after Bucks, Montgomery, and Philadelphia Counties moved to count them for the Nov. 5 election.
These are the ballots where a voter has neglected to write the date on the return envelope or written something incorrect, like their birthday. There are roughly 1,500 or so ballots in play in the three counties, likely not enough to change the outcome of the U.S. Senate race that is spurring the litigation.
Still, the legal action highlights an unsettled area of policy that has long frustrated people in charge of running elections in Pennsylvania.
Attorneys for the counties had argued that officials there had constitutional concerns about rejecting the improperly dated ballots.
They pointed to Commonwealth Court, which has ruled multiple times this year that rejecting mail ballots solely for an improper date violates the state constitution’s free and equal elections clause.
On Monday, a 4-3 majority of the Pennsylvania Supreme Court told the three counties not to include undated and misdated ballots in their counts. It clarified that the Commonwealth Court rulings do not apply to the Nov. 5 election.
Here’s how to understand the background leading up to the decision:
What exactly is an undated mail ballot?
A mail ballot in Pennsylvania comes with two envelopes: an inner secrecy envelope and an outer return envelope.
There is a field on the return envelope for the voter to write “today’s date” — meaning, the date they fill it out.
An undated ballot is one where the voter left that field blank. A “misdated” ballot is generally understood to be one on which a voter wrote a date outside a range described in a Pennsylvania Supreme Court ruling — between when counties begin mailing out ballots and Election Day, when they are due.
The Pennsylvania Department of State directed counties to pre-print the full year — 2024 — on the envelope to help voters avoid writing the wrong date, like their birthdays, previously one of the most common errors.
Is counting undated mail ballots ‘illegal’?
The first way to understand the issue is based on what state law has to say about these ballots. The Pennsylvania Election Code requires voters to date and sign the return envelope in order for the ballot to be accepted and counted. However, this enforcement of this provision has been heavily litigated over the past several years.
You may have seen headlines like this one from Fox News: “Pennsylvania Democrats openly admit to counting illegal ballots in McCormick-Casey race.” Or this one from the Washington Post editorial board: “Democrats thumb their nose at the rule of law in Pennsylvania.”
These pieces reference the decisions in Bucks, Montgomery, and Philadelphia Counties to accept and count improperly dated ballots.
The Pennsylvania Supreme Court’s order on Monday cited a ruling it made in 2022 that “the Election Code’s command” to date ballots “is unambiguous and mandatory.”
But in the years since, both state and federal courts have been asked to consider other legal challenges to the rule, including most recently an argument that it violates the state constitution.
In August, Commonwealth Court — one of Pennsylvania’s appellate courts — ruled that the dating requirement violates the free and equal elections clause of the state constitution. It ruled the same thing in October in response to a case stemming from a Sept. 17 special election in Philadelphia.
The Pennsylvania Supreme Court has yet to rule on the merits of such a challenge and repeatedly declined to do so ahead of the Nov. 5 election.
Instead, it threw out the August ruling on a technicality. And then, on Nov. 1, it ruled that Commonwealth Court’s decision in the Philadelphia case would not apply to the general election.
The three counties in turn argued that they had to consider whether rejecting someone's improperly dated ballot this election would violate their constitutional rights, since the high court had not ruled on the issue.
The counties did not believe that Nov. 1 ruling prohibited them from “independently assessing whether rejecting mail ballots with voting errors cast is consistent with the Pennsylvania Constitution and the statutorily prescribed process for counting votes,” their attorneys argued.
The court made itself clear Monday afternoon, telling the counties to “comply with the prior rulings of this court in which we clarified that mail-in and absentee ballots that fail to comply with the requirements of the Pennsylvania Election Code shall not be counted for the purposes of the election held on November 5, 2024.”
One state Supreme Court justice, Kevin Brobson, admonished the counties for what he said was an overstepping of their authority.
Local election officials do not have the authority “to ignore Election Code provisions that they believe are unconstitutional,” he wrote. “Only the courts under our charter may declare a statute, or provision thereof, unconstitutional.”
What happens now?
Monday’s order stems from suits filed by the national and state Republican parties asking the high court to stop the counties from counting the improperly dated ballots. They asked the court to use its authority to immediately intervene in pressing issues, which it did in issuing Monday’s order.
Two lawsuits in Philadelphia and Bucks Counties challenging the counting decisions were also filed last week by the campaign of U.S. Senate candidate Dave McCormick, the status of which is now unclear given the state Supreme Court’s ruling. McCormick, a Republican, leads Democrat Bob Casey, the incumbent, by fewer than 18,000 votes in a race that is currently being recounted because of the narrow margin.
The larger issue of whether rejecting improperly dated ballots is unconstitutional is still unresolved, although that may soon change. Republicans have appealed the Commonwealth Court ruling on the Philadelphia case to the state Supreme Court.
“I think the way the court handled this really did some harm to the election process in some ways,” said Quinn Yeargain, a professor of state constitutional law at Michigan State University and formerly of Widener University in Pennsylvania.
Yeargain said the courts have clearly known this issue was going to come up and have been presented with multiple opportunities to address it, but have “repeatedly refused to do so.”
“I really take some offense to this high and mighty ‘How dare you?’ particularly in Brobson’s concurrence, because the court has not provided guidance,” Yeargain said. “I don't think the courts are going to be able to play that game of ‘not it’ forever. They are eventually going to have to deal with it. It is not going away.”
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