The Pennsylvania Supreme Court this week ordered counties to decline to count any absentee or mail-in ballot delivered in an undated envelope.
State law, which has permitted no-excuse absentee voting since 2020, requires those not voting in person to place their ballot into a secrecy envelope before placing it into a return envelope. Voters must sign and date that outer envelope for their ballot to be valid under state statute.
Since 2020, a number of disputes have arisen as to whether election boards can count ballots delivered in envelopes with no date. These contentions culminated in the Ball v. Chapman lawsuit filed by the Republican state and national parties against acting Secretary of State Leigh Chapman (D) seeking to invalidate all future ballots whose envelopes do not show a written date.
Pennsylvania’s majority-Democrat high court was split as to whether the commonwealth’s date requirement violates federal law. Republican Justices Sallie Mundy and Kevin Brobson, joined by Democrat Kevin Dougherty, ruled that the state statute breaches no federal statute or constitutional provision.
Democratic Chief Justice Debra Todd as well as fellow Democrats Christine Donohue and David Wecht did find that the state law runs afoul of federal law but their three-vote plurality was insufficient to nullify the date requirement. The decision does nevertheless require that county election boards “segregate and preserve” every ballot containing either no date or an erroneous date.
The death of Chief Justice Max Baer in October may have affected the case’s outcome. When Baer presided over the court, Democrats had a five-to-two majority.
Republican lawmakers welcomed the Ball ruling.
“After years of conflicting judicial decisions, guidance from the [Tom] Wolf administration, and action from various Pennsylvania counties, it is refreshing to see the Pennsylvania Supreme Court uphold the plain language of Pennsylvania’s election law that mail-in and absentee ballots must be dated and dated correctly to be considered valid,” Pennsylvania House State Government Committee Chairman Seth Grove said in a statement. “It is my hope that the acting secretary of state and each individual county board of elections will adhere to all components of the court’s brief order and not merely view it as advisory in nature.”
Questions about the validity of undated absentee ballots came up in several elections including the 2020 campaign for Pennsylvania’s 20 electoral votes between former President Donald Trump and current President Joe Biden. Trump attorneys failed to persuade the state supreme court to invalidate undated ballots in that election.
Such ballots were a tiny fraction of Biden’s 80,555-vote margin of victory, but that year did see at least one race’s result hinge upon the counting of undated ballots. Republican Nicole Ziccarelli, who challenged State Senator Jim Brewster (D-Monroeville) for re-election, argued for invalidation of the improperly completed ballots but state judges ultimately disagreed with her, deciding the race for the incumbent.
Last year, Democrat Zachary Cohen and Republican David Ritter would face off in another race whose outcome depended on counting undated ballots, this time for Lehigh County Court of Common Pleas. After prolonged litigation, the Third U.S. Circuit Court of Appeals would rule in Cohen’s favor, counting the ballots and securing his win.
The question of whether to count undated ballots also led to a court battle between eventual Republican Senate nominee Mehmet Oz and another primary hopeful, Dave McCormick. While the Pennsylvania Commonwealth Court sided with McCormick in favor of including undated ballots in the final tally, the decision did not affect Oz’s nomination victory.
Liberals and Democrats have consistently argued in favor of counting absentee ballots delivered in envelopes on which the voter failed to correctly write the date. Their argument chiefly rests on the “materiality provision” of the 1964 Civil Rights Act. That section bars denying “the right of any individual to vote in any election because of an error or omission on any record or paper relating to any application, registration, or other act requisite to voting, if such error or omission is not material in determining whether such individual is qualified under State law to vote in such election.”
Keystone State progressives panned the state supreme court’s determination that state law did not violate the act.
“No one should have their ballot discarded over a meaningless technicality,” American Civil Liberties Union Pennsylvania Legal Director Vic Walczak said after the ruling became public. “We will keep fighting to be sure that every valid vote counts.”
Republicans, however, argue that dating a ballot does serve important purposes, such as ascertaining if a voter who moved late in an election season resided in the district in which he or she claimed to have lived when he or she voted.
“Dates matter, and the dating of important documents has been a critical tool in officiating the legality of documents for centuries,” Pennsylvania House Speaker Bryan Cutler (R-Quarryville) and Majority Leader Kerry Benninghoff (R-Bellefonte) said in a joint statement. “We thank the Pennsylvania Supreme Court for re-confirming what we have said all along: Pennsylvania’s election law is undeniably clear that mail-in ballots and absentee ballots must be correctly dated to be valid … . Today’s decision is not only a win for the plain language of Pennsylvania law, but also for upholding the security and integrity of our elections.”
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