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A coalition of voting rights advocates is trying again to get the Pennsylvania Supreme Court to conclusively decide whether voters need to date their mail ballot return envelope in order for their vote to be counted, likely the last chance to settle the question before the November election.
After the court rebuffed the plaintiffs on jurisdictional grounds in a decision earlier this month, the American Civil Liberties Union of Pennsylvania and the Public Interest Law Center asked the high court to exercise its authority to bypass the lower courts to directly address pressing legal matters.
Because the court previously did not rule on the merits of the case, the organizations, suing on behalf of a coalition of voting rights groups, are again arguing that the dating requirement violates the state constitution.
“The refusal to count timely mail ballots submitted by eligible voters because of an inconsequential error violates the fundamental right to vote recognized in the Free and Equal Elections clause,” the suit says. “The imminent threat of mass disenfranchisement warrants this Court’s exercise of its King’s Bench authority.”
It is unclear if the court will use its discretionary power to take up the case, but at least three of its seven justices indicated they were open to such a move.
If the court does take the case, it could have a large impact on voters this November, as thousands of ballots are rejected each election for lacking a proper date.
Pennsylvania’s mail voting law, Act 77, requires voters to sign and date the outer return envelope of their mail ballots, and return the ballot in a secrecy envelope, in order for it to be counted.
During the April primary, counties rejected roughly 8,500 ballots, or 1.22% of those returned, for lacking a signature or date, or for being returned without a secrecy envelope, according to an analysis of Pennsylvania Department of State data. More than 4,400 of those were rejected for dating issues. Applications for nearly double the number of ballots returned in the primary have already been approved and ballots will soon reach voters. More voters are expected to apply before the Oct. 29 deadline.
The dating requirement has been caught in nearly continuous litigation since Act 77 was implemented in 2020. Federal and state judges have ruled at various points that the date should not be required, but those rulings have since been overturned.
Earlier this month in the most recent case, brought by many of the same litigants, the state Supreme Court voided a lower court’s ruling that had found the requirement unconstitutional.
The ACLU and others had argued to the state’s Commonwealth Court that the provision violated 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.”
In a 4-1 ruling in late August, Commonwealth Court agreed with them. But the ruling was quickly appealed by Republicans to the state Supreme Court, which voided the lower court’s order in a 4-3 ruling, on the grounds that the lower court did not have the authority to hear the case.
The three state Supreme Court justices who disagreed with the majority’s ruling wrote in their dissent that the high court should use its authority to take up the issue immediately.
The ACLU is not the only group asking the court to exercise this power. The Republican National Committee and Pennsylvania GOP last week asked the court to take up a case on whether counties were violating the law in regards to a mail ballot policy adopted in some counties.
The policy, known as notice-and-cure, is adopted in some counties where elections offices notify voters of errors on their mail ballot — such as lacking a proper date — and permit them to fix those errors.
In a statement, RNC Chair Michael Whatley said the policy “ignores the law,” though the Pennsylvania Department of State disputes that characterization.
The court has not yet said whether it will hear that case either.
Carter Walker is a reporter for Votebeat in partnership with Spotlight PA. Contact Carter at cwalker@votebeat.org.
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