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Update, Oct. 31: The Pennsylvania Republican Party and Republican National Committee have appealed this case to the state Supreme Court.
Philadelphia must count mail ballots from the September special elections that were submitted with return envelopes that voters incorrectly dated or failed to date, a state appellate court ruled Wednesday in a decision that doesn’t explicitly apply to the November general election.
While the ruling applies narrowly, it raises the possibility of additional action by the state Supreme Court and gives county officials yet another ruling to consider when deciding how to handle ballots this November.
In the 3-2 ruling Wednesday, the state’s Commonwealth Court said that the city had to count ballots from mail voters who made dating errors in the Sept. 17 special elections for two vacant legislative seats.
The ruling said a local Philadelphia court got it right when it said rejecting the ballots violated the state constitution.
“We hold that the trial court did not err in ordering the County Board to count the 69 undated and incorrectly dated absentee and mail-in ballots cast in the [special elections] on the basis that not counting those ballots violates the free and equal elections clause of the Pennsylvania Constitution,” Judge Ellen Ceisler wrote for the majority.
In a footnote, Ciesler wrote that the case “relates to a special election that has already occurred, and not the 2024 general election.”
In a dissenting opinion, Judge Matthew Wolf said the majority decision risked “causing confusion on the eve of the 2024 General Election.” Judge Patricia McCullough raised the same concern in a separate dissent.
“There simply was and is no reason to decide this question now, and the Majority certainly has not done so in ordinary course,” McCullough wrote. “Both the trial court and this Court should have declined to issue rushed and novel constitutional rulings that surely will confuse the expectations of both voters and county boards of elections alike.”
The decision leaves unresolved constitutional questions about counting undated or misdated ballots in the November election, though it does not force officials to count them.
“Of course we hope they will, because if [rejecting them is] unconstitutional in September it is unconstitutional in November,” said Andy Hoover, a spokesperson for the American Civil Liberties Union of Pennsylvania, which along with the Public Interest Law Center brought the case on behalf of two voters. “And if they or any county don’t, this ruling sets up post-election litigation.”
While an appeal in the case could prompt the state Supreme Court to step in next, for now, other counties aren’t bound by the ruling.
“The order certainly does not expressly apply to all counties,” said Adam Bonin, a Philadelphia-based Democratic election lawyer, who was not part of this case but has been involved in other lawsuits challenging the dating requirement. But Bonin said all county attorneys need to take note of the fact that a state court has ruled that disqualifying ballots for these reasons violates the constitution, and advise their counties accordingly.
After the September special elections, the American Civil Liberties Union of Pennsylvania and Public Interest Law Center sued Philadelphia on behalf of two voters who neglected to date their ballot envelopes, which officials rejected. The groups argued that under a provision in the state constitution, the city could not reject the ballots for such a trivial paperwork error.
The argument is identical to one made by the groups in a separate case this summer. The Commonwealth Court ruled in the groups’ favor in that case in August, but the state Supreme Court voided the decision on procedural grounds in September. The high court then also declined an ACLU request to exercise its authority to bypass the usual court process and immediately decide the dating issue.
The ACLU and Public Interest Law Center hailed Wednesday’s ruling as a victory.
“We applaud the Commonwealth Court for its ruling recognizing the rights of voters, and we hope that every county will abide by this ruling in its processing of mail ballots next month,” said Mimi McKenzie, legal director of the Public Interest Law Center. “Because today’s decision may not be the last word on this issue, we still advise voters to date their return envelope, take any opportunity they have to cure mistakes, or vote provisionally on election day if they made a mistake on the envelope date.”
In the Philadelphia case, a local judge ruled that the city erred in not counting the ballots on the grounds that it violated the state constitution’s free and equal elections clause, but the city and Republican groups that intervened in the case appealed that ruling to the Commonwealth Court.
The city commissioners appealed on the grounds that they did not want to be in a scenario where Philadelphia was the only county counting the ballots or was required to count the ballots for the special elections but not the November general election.
“The Board appreciates the Commonwealth Court’s ruling in this case, which will enable the Board to avoid inconsistency, comply with the Election Code, and uphold the voting rights of electors under the Pennsylvania Constitution,” Ava Schwemler, a spokesperson for the city, said. “We are grateful for a resolution on this matter to guide consistent and equitable election operations.”
Schwemler said the city will not be appealing to the state Supreme Court.
Republican groups that intervened in the case argued the ACLU and Public Interest Law Center’s case had procedural defects, and the Philadelphia court’s ruling violated a legal principle of not changing the rules close to an election.
A spokesperson for the RNC did not immediately respond to a request for comment. On Thursday, the RNC and the Pennsylvania Republican Party appealed the decision to the Pennsylvania Supreme Court.
Amy Gulli, a spokesperson for the Pennsylvania Department of State, said it was “pleased with the result, which won’t interfere with the upcoming election and will only serve to enfranchise voters who otherwise would have their votes thrown out for meaningless mistake.”
Bonin said he anticipated the state Supreme Court will take up the issue soon.
“I assume that the state Supreme Court is going to bring clarity to this between now and when the counties are counting their ballots,” he said. “They have had multiple opportunities to bring finality to this. … The only way that this issue goes away is if all the courts close all the doors.”
Carter Walker is a reporter for Votebeat in partnership with Spotlight PA. Contact Carter at cwalker@votebeat.org.
