When Pennsylvania’s highest court gathered in Philadelphia on Sept. 10 to hear arguments on whether voters must write the date on their mail ballot return envelopes, a lawyer for Republican groups told justices that eliminating the requirement could prompt a flood of election law challenges.
It's probably a little late to worry about that.
Election litigation hit unprecedented heights across the country during the 2024 election cycle, according to an expert who tracks it, a sign that courts are increasingly being asked to settle partisan battles over election administration.
And Pennsylvania’s mail ballot dating requirement could very well be the most litigated of all.
Lawmakers adopted the requirement that voters sign and date the outside mail ballot envelope as part of a larger election law, Act 77, in 2019. The legal disputes center on whether the requirement can be enforced and whether it serves any practical purpose.
Since Act 77 was enacted, courts have made at least nine different rulings that have switched the way counties must deal with undated or misdated mail ballots, and the rules voters must follow. The back-and-forth decisions have flummoxed voters, frustrated election administrators, and kept taxpayers perpetually on the hook for litigation bills.
“The deluge of cases and the deluge of decisions, it gets confusing,” said Andrew McGinley, vice president of external affairs at the Committee of Seventy, a Philadelphia-based government watchdog group.
At separate points in separate cases brought under differing legal rationales, state appellate courts have said undated ballots should be counted, and said the requirement couldn't be enforced. Federal courts have said it violated federal law, only to have those decisions vacated on appeal. The U.S. Supreme Court has declined to take up the issue in one case, while invalidating rulings in another.
It’s all over a requirement which both judges and election officials have said serves no functional purpose in running elections. But election experts and attorneys hope the saga is nearing an end as the state Supreme Court hears one ongoing case, and a parallel proceeding makes its way toward the U.S. Supreme Court.
Conflicting court decisions have roiled elections
As the court cases have dragged on, state and local election officials have redesigned Pennsylvania’s mail ballot envelope and educated voters about the dating requirement. Those steps have helped reduce the percentage of mail ballots rejected for lacking a proper date — as well as missing signatures or secrecy envelopes — by more than half, from 1.31% in the 2022 general election to just 0.57% during last year’s higher-turnout presidential election.
But that hasn’t settled the legal dispute.
Opponents of the ballot dating requirement say courts must strike it down to avoid allowing the state to impose hurdles on voters without good cause. Those backing the requirement say it does have a purpose, such as detecting fraud or as the record of last resort to document when the ballot was cast.
Since the requirement passed, thousands of voters have had their ballots set aside and their votes rejected because they forgot to write that date, even though they were otherwise eligible.
On at least three occasions, decisions have dropped just before or after voters cast their ballots, changing the rules during an election.
“Obviously, it’s not helpful for us to have this lack of clarity on what the law is going to be for every election,” said Thad Hall, elections director for Mercer County. “In many cases when they’ve switched the court decision, it has come down right before we’re canvassing, right when we’re canvassing, and it makes it difficult for us in how we handle things.”
In late November 2023, a federal district court in Western Pennsylvania ruled that the requirement violated a provision of the Civil Rights Act of 1964, which says a voter’s ballot cannot be rejected for reasons that are immaterial to the voter’s eligibility. That ruling came right when counties were in the middle of finalizing their vote totals.
Some counties included improperly dated ballots in their count for that election, some didn’t, and the decision reshaped the outcome of at least one local race.
In the eight elections since 2020 where an order to not count the ballots has been in effect, tens of thousands of ballots have been rejected for lacking a date, according to Votebeat and Spotlight PA analysis, data from lawsuits, and figures from the Pennsylvania Department of State.
A spokesperson for the Pennsylvania Department of State said a complete figure for ballots rejected in the five years the law has been in effect is unavailable due to how data was tracked in the earlier years of no-excuse mail voting.
At least some of that is because the back-and-forth has confused voters, the current case before the state Supreme Court suggests.
One of the plaintiffs in that case, Susan Kinniry, forgot to date her return envelope for a September 2024 special election. She received an email saying her ballot would not be counted, but didn’t attempt to fix the error, because three days after she got the email, the state’s Commonwealth Court ruled that rejecting ballots for lacking a date violated the state’s constitution.
By that standard, Kinniry’s ballot would have been counted. But then, just before the election, the state Supreme Court stayed the Commonwealth Court’s ruling, meaning it ultimately didn’t count after all.
What purpose does the date on a ballot envelope serve?
Kinniry and the American Civil Liberties Union of Pennsylvania, which represented her, argue that disqualifying the ballot for lacking a date violates the “free and equal elections” clause of the state constitution. That clause says that “no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.”
The ACLU, along with lawyers for the state Democratic Party and the city of Philadelphia, say the requirement violates the clause because it burdens the voter without furthering a compelling government interest. They say, as they have in other cases and as the federal courts have determined in previous rulings, that the voter’s handwritten date plays no role in election administration.
That’s because when a mail ballot is sent from a county or its vendor to a voter, the barcode on the envelope is scanned, and the date on which it was sent is recorded in the state’s election management system, known as SURE. The date is also recorded when a ballot is returned to the county, and workers physically stamp the envelope with a return date. The handwritten date plays no role in determining whether the ballot was received in time to be counted.
Lawyers representing Republican Party groups and the state’s attorney general, arguing in favor of keeping the requirement, said the date can serve other purposes, including as a backstop if the SURE system fails.
But Ben Fabens-Lassen, a lawyer for Philadelphia’s Board of Commissioners, said in that “unlikely instance," there is “simply no way” election officials would use the handwritten date, since they have the physical stamp as a backup.
John Gore, the lawyer representing Republican Party committees in both the federal and state cases, also said the date could help officials prove fraud. He pointed to a fraud case from Lancaster County where a woman returned her deceased mother’s mail ballot and wrote a date on it that was after the woman had died. That helped prosecutors show the ballot had been cast fraudulently, Gore argued.
But Daniel Volchok, who represented the Pennsylvania Democratic Party, countered that the date was just one of six elements detectives had used in that case to make that determination, and removing it wouldn’t have changed anything.
Justices were clearly wrestling with the same questions when they heard the case earlier this month.
“If there is no purpose in a requirement, I struggle with how an election can be ‘free’ if there is a trick,” Chief Justice Debra Todd said. Donohue said it was “uniquely without purpose.”
On the other hand, Justice Kevin Brobson suggested the date shows when voters signed the attestation on the return envelope, showing exactly when they attested that certain facts are true.
A rising tide of litigation
Rick Hasen, a professor at UCLA Law School who tracks election litigation, says the two-year federal election cycle of 2023-24 saw more election lawsuits than any other period since the beginning of his database, in 1996.
“Political operatives recognized that in very close elections, the rules of the game matter a lot,” he said.
Hasen said while it’s rare that litigating over technical issues in election law can change the outcome of a race, it’s not impossible.
For example, in 2008, Al Franken, a Democrat, initially lost a bid for a Minnesota U.S. Senate seat to incumbent Republican Norm Coleman by a few hundred votes. But the close margin triggered a legally required recount, during which attorneys for Franken argued that some absentee ballots had been improperly rejected and should be counted. Franken ultimately won.
Hasen said there have always been cases like that — post-election disputes in close races over which ballots to count — but part of what sets the current moment apart is that we are now also seeing pre-election disputes over what ballots should be counted.
Derek Muller, an election law professor at Notre Dame Law School, has pointed to another contributing factor: a 2014 federal campaign finance change allowed fundraising specifically for election litigation. Hasen said the change created an incentive to pursue more cases, “because otherwise you're kind of leaving money on the table.”
Even against that backdrop, Hasen said the amount of litigation over Pennsylvania’s mail ballot dating requirement stands out. Factors that could be fueling it, he said, include the commonwealth’s status as a swing state, a perception that less restrictive mail ballot rules help Democrats and hurt Republicans, and a general sense that it’s unfair to reject a ballot that election officials know was received on time and would otherwise be counted.
“If Pennsylvania were not so polarized, or if one party controlled the legislature and the governor's office, then you could well see a legislative fix for this problem,” he said.
Is the end near?
Either the case currently before the Pennsylvania Supreme Court, or another one pending in the federal courts, could theoretically settle the question for good.
Adam Bonin, a Philadelphia-based Democratic election lawyer, is representing a voter from central Pennsylvania, Bette Eakin, who argued that rejecting mail ballots for issues with the date on the outer envelope violates voters’ First Amendment rights, since voting is considered an expression of free speech.
A federal district court judge agreed with that argument in March, and a panel of the 3rd U.S. Circuit Court of Appeals upheld it in August.
The Republican National Committee is asking the full bench of 3rd Circuit judges to rehear the case. At the state Supreme Court hearing, Gore suggested the 3rd Circuit’s ruling could ultimately be appealed to the U.S. Supreme Court.
And if the state Supreme Court rules for the ACLU, Republicans could, in theory, appeal that to the U.S. Supreme Court, too, if they believe the state court overstepped.
But other than that, there aren’t “too many steps left,” Bonin said.
“I’ve got to believe, after three to four years of litigating this same issue in different iterations, we’re finally going to get to a place where this disenfranchisement trap goes away,” said Stephen Loney, the ACLU’s senior supervising attorney who argued the case on Sept. 10
Of course, even if the courts finally manage to end the back-and-forth on the dating requirement, there are plenty of other election cases still pending in Pennsylvania.
“There's still outstanding issues about ‘notice and cure,’ pre-canvassing, all these pieces,” noted McGinley, of the Committee of Seventy, “and that requires the legislature to act to clarify a lot of these different issues that have come up as a result of Act 77.”
And still more court cases are certain to follow.
Carter Walker is a reporter for Votebeat. Contact Carter at cwalker@votebeat.org.