Pennsylvania Decision Against Counting Undated Mail Ballots Prompts Supreme Court Appeal


Pennsylvania’s Commonwealth Court this week ruled that 257 flawed ballots in a Lehigh County judgeship election cannot be counted, prompting Democratic candidate Zachary Cohen to announce a state Supreme Court appeal. 

Excluding these mail-in ballots, which contain no date on their return envelopes, puts Republican David Ritter 74 votes ahead of Cohen in their contest for Lehigh County Court of Common Pleas judge, in which about 22,000 total votes were cast. Ritter initially sued in county court to exclude 261 ballots, four of which displayed a date, albeit not on the correct line. Trial Judge Edward D. Reibman (D) handed down a ruling favorable to Cohen, spurring Ritter to appeal to the Commonwealth Court which handles litigation between governing entities, public officials and candidates. 

The three appellate judges empaneled to hear the case declined to rule on the four ballots dated in improper spaces as they would not have affected the race’s outcome. Two of the three jurists, Republicans Patricia A. McCullough and Christine Fizzano Cannon, voted to exclude the undated ballots. Democrat Michael H. Wojcik dissented in favor of counting them.

“These 261 ballots are from registered voters who turned in their ballots on time,” Cohen’s attorney Adam C. Bonin said in a statement. “Their ballots should be counted. We respectfully disagree with the decision of the Commonwealth Court and will be appealing to the Supreme Court of Pennsylvania immediately.” 

Pennsylvania’s election code states that an elector voting by mail is instructed to first fill out his or her ballot, then place it in an envelope, then place that envelope inside a larger envelope displaying a printing of a “declaration of the elector” and finally “fill out, date and sign the declaration printed on such envelope.”

Judges in the dispute between Cohen and Ritter had to iron out the complexities of a state Supreme Court decision issued in November 2020 in response to a lawsuit filed by President Donald Trump’s campaign challenging the counting of undated mail-in ballots. 

In that case, Justices Christine Donohue, Max Baer and Debra Todd—all Democrats—maintained that failing to date a mail-in ballot does not invalidate that ballot. Then-Chief Justice Thomas G. Saylor (R) as well as Justices Sallie Updyke Mundy (R) and Kevin M. Dougherty (D) professed that neglecting to date such a ballot does disqualify that ballot. Justice David N. Wecht (D) opined that dateless mail-in ballots were invalid but that that determination should not apply to the election then under consideration, the first general election to feature no-excuse absentee voting. 

The 2020 ruling in favor of presently counting undated ballots was decisive in Democrat Jim Brewster’s razor-thin victory against Republican candidate Nicole Ziccarelli for Pennsylvania’s 45th Senate district. Nonetheless, McCullough, in her majority opinion for the Commonwealth Court, said that part of the ruling lacked the force of precedent.

“…A majority of the Justices… generally agreed that—at least in this point in time—the undated mail-in ballots must be set aside,” Judge McCullough wrote. “In other words, for present purposes, the [Saylor-Mundy-Dougherty] opinion reflects the majority view of the Supreme Court with respect to the question of law at issue in this case. …We conclude that [that opinion] in conjunction with [Justice Wecht’s] should be considered as precedential authority that is binding on this Court and controls the outcome of this case.”

Wojcik, in his dissent, asserted that absentee voters who neglect to follow the instructions for dating their declarations as set forth by Pennsylvania lawmakers nonetheless deserve to have their ballots cast.

“…The Majority seeks to disenfranchise 261 registered voters who timely returned their mail-in ballots to the Lehigh County Board of Elections (Board), which ballots were sealed in secrecy envelopes and inserted in sealed outer envelopes containing a declaration that the voters signed, but did not properly date, and which ballots the Board received by 8:00 p.m. on the date of the Municipal Election, November 2, 2021,” Wojcik wrote. “Unlike the Majority, I do not believe that a ‘majority’ reasoning may be divined from the plurality opinion of the Supreme Court… or that such reasoning compels a different result….”

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Bradley Vasoli is managing editor of The Pennsylvania Daily Star. Follow Brad on Twitter at @BVasoli. Email tips to [email protected].
Photo “Zachary Cohen” by Zac Cohen for Judge. Photo “David Ritter” by David Ritter for Judge. Background Photo “Ballot Drop Box” by Cliffordsnow. CC BY-SA 4.0.






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