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Update, Nov. 18: High court tells Pa. counties not to accept undated mail ballots for November election
At least three Pennsylvania counties are accepting and counting mail ballots from last week’s election that lack a proper date on the envelope, prompting a new legal clash in a long-running disagreement over how to handle these ballots.
The Republican National Committee and the Pennsylvania Republican Party filed a lawsuit Thursday asking the state Supreme Court for an immediate ruling on the issue.
Counties are in the last stage of counting their ballots and finalizing their original election results as they prepare for a recount in the U.S. Senate race starting next week. What the counties do with ballots that are undated or that have an incorrect date is a particular concern because of how close that race is. As of 4 p.m. Friday, fewer than 23,000 votes separated Republican Dave McCormick and incumbent Democratic Sen. Bob Casey, according to results from the Department of State’s website.
And the two campaigns are taking an active role in the dispute over which ballots should be counted.
The GOP lawsuit names Philadelphia, Bucks, and Centre counties as having opted to count the undated and misdated ballots. Centre County Administrator John Franek said that the county did not count any undated ballots but that officials counted three challenged ballots that had issues with how the date was filled out.
At least one other county, Montgomery, has also confirmed it is counting them, after its board of elections voted 2-1 to approve the move Thursday.
“The issue for us is, and the reason that I'm voting yes, is because we’re talking about constitutional rights,” said Neil Makhija, chair of the Montgomery County Board of Elections, at Thursday’s meeting. “I cannot take an action to throw out someone's ballot that is validly cast otherwise over an issue that … we know is immaterial.”
The Pennsylvania Department of State declined to say what the other 63 counties in the commonwealth are doing. Votebeat and Spotlight PA have confirmed that at least five, Allegheny, Snyder, Chester, Lycoming and Mercer, are not accepting the ballots to be counted.
Republicans, in their emergency petition Thursday, called for the Supreme Court to declare that the date requirement on ballots is mandatory and that counties shouldn’t count such ballots in this election.
“Regrettably … the recalcitrant rulings of these county boards, issued in the wake of a hotly contested election in which millions of Pennsylvanians cast their ballots and made their voices heard, require the Court to [act],” the Republican groups wrote.
Enforcement of the date requirement contested for years
Pennsylvania’s election code 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.
But enforcement of the dating requirement has been in dispute for years, with opponents, such as the American Civil Liberties Union of Pennsylvania, arguing that it is immaterial to a voter’s eligibility to vote and that rejecting on that basis violates their constitutional rights. Litigation has gone on continually since 2020.
The three most recent cases, resolved in the last three months, did not bring much clarity to the issue from the state’s highest courts.
First, in August, the Pennsylvania Commonwealth Court ruled in a case brought by the ACLU and Public Interest Law Center that the dating requirement violated voters’ right to vote under the state constitution. But the state Supreme Court quickly voided that order on technical grounds, though it did not rule on the merits of the constitutional question.
After that ruling, the state Supreme Court declined to take up the constitutional issue directly.
Then, a mid-September special election in Philadelphia again resulted in litigation over the dating requirement, and the Commonwealth Court again ruled, on Oct. 30, that the requirement violated the state constitution. However, the court said its decision didn’t apply to the Nov. 5 general election.
Asked to provide clarity, the state Supreme Court affirmed on Nov. 1 that the Commonwealth Court’s decision applied only to the Philadelphia special election, not the general election, and again, did not address the underlying question of constitutionality.
Still, some counties such as Montgomery looked to the Commonwealth Court ruling in the Philadelphia case as evidence that the dating requirement is unconstitutional and that the undated or misdated ballots should be counted.
Department of State offers guidance
Election officials have repeatedly noted that they do not use the voter’s handwritten date to determine whether a ballot was received by the deadline, which is 8 p.m. on Election Day. Mail ballots have barcodes on their return envelopes that electronically record when ballots are sent out by the county and when they are received back.
Pennsylvania's Department of State has given some guidance to counties on how to handle undated or misdated ballots, though this guidance does not have the force of law.
The guidance advises counties to segregate undated or misdated ballots — a common tactic when the legal status of certain ballots is uncertain. Citing ongoing litigation over how these ballots should be handled, it said the department would update its guidance "as soon as it is able."
In the absence of a clear ruling from the state Supreme Court, that updated guidance has still not come.
In Snyder County, where officials decided not to count undated or misdated ballots, Commissioner Joe Kantz said it was clear to the election board that the Oct. 30 Commonwealth Court ruling in the Philadelphia special election case did not apply to any other county, or to the general election.
In its suit filed before the state Supreme Court on Thursday, the RNC and Pennsylvania GOP similarly argued that the high court has made itself clear in past rulings that the undated and misdated ballots are not to be counted.
They point to the court’s September decision voiding the Commonwealth Court's ruling that the requirement was unconstitutional; a 2022 ruling in which the Supreme Court ordered undated or misdated ballots to not be counted; and the high court’s Nov. 1 order in the Philadelphia special election case.
The GOP organizations asked the court to use its authority to immediately order counties not to count the ballots.
Earlier this week, Republicans also appealed the Commonwealth Court’s ruling in the Philadelphia special election case to the state Supreme Court, asking the court to specifically weigh in on the case’s merits.
Like the state and national Republican parties, McCormick is seeking to stop undated or misdated ballots from being counted. His campaign sued Bucks County Wednesday and Philadelphia on Friday challenging their decision to count the ballots. That’s a reversal for McCormick, who during his failed 2022 bid for U.S. Senate sued to have undated and misdated ballots counted in the Republican primary.
Casey’s campaign has meanwhile been advocating for the ballots to count.
“The Pennsylvania Supreme Court has not ruled on the merits of this case, and we agree with both the Commonwealth Court’s ruling and David McCormick’s 2022 position that invalidating misdated and undated ballots disenfranchises Pennsylvania voters over a requirement that is irrelevant in determining a voters’ eligibility,” a statement from Casey campaign manager Tiernan Donohue said.
Carter Walker is a reporter for Votebeat in partnership with Spotlight PA. Contact Carter at cwalker@votebeat.org.
