Pennsylvania appeals court hears arguments over incorrectly dated mail-in ballots

A government lawyer told an appeals court on Thursday that no county board of elections in Pennsylvania uses the handwritten date on the outer envelope of mail-in ballots for any purpose.

Why then, he asked, should a mistake in the date invalidate a person’s vote?

“A rule that serves no purpose should not disenfranchise voters,” said Michael Fischer of the Pennsylvania Office of General Counsel. “That’s all we’re asking for here.”

A five-judge panel of Commonwealth Court judges heard more than two hours of oral arguments in a case that could have significant impact nationwide as Pennsylvania plays a leading role in this year’s general election.

In May, voting rights organizations sued the Pennsylvania Secretary of State and the Allegheny and Philadelphia county election boards. They claimed that failure to count mail-in ballots with undated or incorrectly dated return envelopes resulted in 10,000 voters being disenfranchised in the 2022 election and thousands more (the exact number is unknown) in this year’s primaries.

The plaintiffs, which include the Black Political Empowerment Project, Common Cause and POWER Interfaith, are seeking to have the Commonwealth Court declare it unconstitutional under state law to reject a ballot for having an incorrect handwritten date on the outer envelope.

Pennsylvania Secretary of State Al Schmidt sided with the petitioners in the case, arguing that the date is irrelevant to the mail-in voting process.

However, the Republican National Committee and the Republican Party, which were given permission to intervene in the case, argued that the date requirement serves a variety of purposes and is required by the state legislature that implemented mail-in voting.

John Gore, the committee’s attorney, said the date serves several functions: to ensure that a voter’s ballot was completed and mailed on time; to attest to the voter’s choices on the ballot; and to detect and deter fraud.

Gore said that if the date is flagged as problematic, it could be used as confirmation of fraudulent voting.

“You can imagine scenarios where the date itself is relevant to some kind of challenge,” Gore said.

Gore urged the court to dismiss the petition, arguing that the plaintiffs failed to show that the date requirement is so unduly burdensome that it violates the state constitution.

“It doesn’t make voting so difficult that it denies the right to vote,” he said. “That’s the criteria for free and equal elections here.”

The court said it would take the matter into consideration and issue its opinion as quickly as possible.

Deprived of his rights

The lawsuit focused primarily on state constitutional claims, unlike several previous cases seeking relief under federal law.

The American Civil Liberties Union of Pennsylvania, which represents voting rights groups, hopes the case will definitively settle the question of whether undated mail-in ballots should be counted.

According to the petition, since the Pennsylvania legislature implemented mail-in voting, millions of people have cast ballots that way, including more than 714,000 people in this year’s primary.

However, in 2022, more than 10,000 votes were not counted because the return envelopes were undated or had an incorrect date.

Commonwealth Court Judge Patricia McCullough questioned why the petitioners had standing in the case.

“I don’t know to what extent the appointment requirement disenfranchises his constituents,” he said.

Attorney Stephen Loney, who represents the petitioners, argued that the vote of a member of the League of Women Voters was not counted because of date requirements.

But more than that, she said voting rights groups that challenged the requirement must now devote time and resources to educating voters about the need to accurately date ballots, which has taken away their ability to work on get-out-the-vote and other educational efforts.

McCullough repeatedly rebutted the plaintiffs’ argument, stating that signing and dating the ballot envelope is similar to writing a check.

“It is important to know the dates on which these things occur,” he said.

But Loney said the date on the envelope is not part of the proof that the voter filled out the ballot.

The ballot itself has a signature and is inside the secrecy envelope, he said. And as long as the ballot is received by 8 p.m. on Election Day, it’s clear it’s timely, Loney said.

Both Loney and Fischer, the state’s attorney, told the court that the date requirement is irrelevant.

“It’s useless in election administration,” Loney said.

Fischer noted that election offices are required to date and time-stamp ballots.

“Therefore, if the board receives a ballot in a timely manner, by definition, it was cast by voters during the relevant time period.”

McCullough then asked about the signature requirement.

“Why is that not an unreasonable burden compared to dating?” he asked.

“Unlike today, the signing is in response to a very important government interest,” Fischer said.

The signature identifies the person who voted, he continued.

Another problem, Fischer said, is that Pennsylvania’s 67 counties handle ballot dates differently.

“So we are certain that there will be unequal treatment across the state,” Fischer said. “Because no two counties can approach this in the same way.”

Who has jurisdiction?

Gore, the Republican National Committee attorney, argued that the Commonwealth Court should not even have jurisdiction in the case because Pennsylvania’s secretary of state has no role in enforcing the date requirement, which falls solely to county boards of elections.

“The clerk has no authority to bind counties and has no authority to enforce the rule being challenged or applied by the county board,” Gore said.

But Judge Ellen Ceisler rejected that claim.

“They are the ones who tell the counties what to do and who will ensure consistency across the state, which is critical.”

Gore also argued that less than 1% of mail-in voters made a mistake on the date, and that number has been declining since the state redesigned the date requirement on the outer envelope.