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The Pennsylvania Supreme Court refused to immediately take up two lingering questions about the rules for mail ballot voting before the November election, saying it’s too close to Election Day to revisit the law now.
The court rejected two petitions Saturday from groups that had sought emergency decisions. One was a request from voting rights groups represented by the American Civil Liberties Union in a long-running effort to end enforcement of mail ballot dating requirements. The other was a request from Republican groups to end policies in counties that notify voters of errors with their mail ballots and give them a chance to fix the errors.
“This Court will neither impose nor countenance substantial alterations to existing laws and procedures” amid an ongoing election, the court wrote in its rejection of the ACLU’s petition.
The rejections mean that the rules for mail ballot voting will likely remain mostly unchanged for the Nov. 5 presidential election, although some other cases about the issue are still pending. The ruling also signals that the high court may be taking to heart 2020 criticism that it changed the rules of the election late in the game.
“Changing election law in the middle of an election is never a good idea, and the parties in these cases have had four years to build a record and bring matters before the courts,” said Thad Hall, elections director in Mercer County.
For voters and election officials, the rules for the November election are now clearer than they were last week, barring any other court ruling before the election. Voters will have to write the correct date on their mail ballot envelope in order for those ballots to be counted. But voters in certain counties will be notified of such errors and will be allowed to fix them.
Court issues decisions as voting gets underway
The ACLU and Public Interest Law Center argued in their petition to the court last month that the mail ballot dating requirement violated the state constitution’s protections for voting rights, and sought to bypass the lower courts to get a fast ruling directly from the state Supreme Court. The petition was the latest development in a long-running legal battle over the requirement, with courts going back and forth this year on whether election officials can enforce the date requirement, which leads to thousands of ballots being rejected each election.
But the state Supreme Court decided Saturday that it would not consider changing the rules again before the election. Mail ballot voting is already underway in many counties.
“While it’s disappointing that our motion for review was denied, the Pennsylvania Supreme Court still has not ruled on the merits of our argument that enforcing the handwritten date rule violates voters’ constitutional rights,” the ACLU of Pennsylvania’s legal team said in a statement. “We hope that, when the next case is before them on this issue, they’ll consider the important constitutional issue at stake. … Voters should not be disqualified over an irrelevant human mistake.”
One judge, Chief Justice Debra Todd, dissented and said she felt the court should take the case.
“The issue before us is of grave importance,” she wrote. “Our county boards of elections, the Secretary of State, the courts of this Commonwealth who are tasked with adjudicating election matters in the first instance, and the voters themselves need clarity on this issue prior to Election Day when ballots will be canvassed.”
In the other petition rejected Saturday, the Republican National Committee and Pennsylvania GOP asked the high court to end notice-and-cure, a practice in some counties of notifying voters of disqualifying errors with their mail ballots and allowing them the opportunity to fix them.
The RNC argued the practice “ignores the law.”
Roughly 30 counties have such policies, according to a Votebeat and Spotlight PA analysis, including many Republican-leaning areas. Many counties have had such policies since the 2020 election.
On Saturday, the court said Republicans had waited too long to bring the challenge, and had not demonstrated the need for a quick intervention. The effect is that the state’s patchwork of notice-and-cure policies will remain in place for the 2024 election.
A spokesperson for the RNC did not respond to a request for comment.
Other election cases are still pending before the courts
The court’s rulings Saturday, particularly in the mail ballot dating case, signaled its desire to avoid making late changes to voting rules.
During the 2020 election, and since then, the court faced criticism from Republicans for rulings that they perceived as doing just that.
For example, the court ruled unanimously in 2020 that counties could not reject ballots because the voter’s signature on the outer envelope did not match the one on file. Another controversy was over the court’s September 2020 decision that allowed mail ballots received up to three days after the election to be counted, due to issues that year with the Coronavirus pandemic and problems in the United States Postal Service
“For these particular cases, ballots are already out, so seeming to change the rules while people are already voting is something that the courts want to avoid,” said Kyle Miller, a policy advocate with the nonpartisan group Protect Democracy. “I think at this point the court was right in saying ‘The rules are the rules. Let's get through this election and then we can consider changing it for the next one.’”
He added that while the courts are an important backstop for voting rights, it’s the legislature that should take up these issues.
But there is still another mail ballot dating case pending in state courts that could go before the high court before the election.
Following a special election last month in Philadelphia for an open seat in the state House, the ACLU of Pennsylvania and Public Interest Law Center sued the city on behalf of voters for not accepting improperly dated mail ballots cast in the race.
Here again, the organizations argued that the requirement violates the state constitution. The voters won at the county level, but Republicans who intervened in the case appealed that ruling to the state’s Commonwealth Court.
Written arguments are due in that case by next Tuesday. It is unclear how soon after that the Commonwealth Court would rule, and whether the case could end up before the state Supreme Court.
However, the court made clear in its rejection of the ACLU petition that it would still consider election cases that come through the “ordinary course” of appeal, which starts in the county courts and goes through the Commonwealth Court before reaching the high court.
Two such cases are still pending before the Pennsylvania Supreme Court. One, from Butler County, deals with whether voters whose mail ballots are rejected for errors have the right to cast a provisional ballot that gets counted. The other, from Washington County, deals with the county’s obligation to inform voters if it is going to reject their mail ballots.
Carter Walker is a reporter for Votebeat in partnership with Spotlight PA. Contact Carter at cwalker@votebeat.org.
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