Pennsylvania’s long-running dispute over mail-in ballot dates returns to court

HARRISBURG, Pa. — A technical requirement that Pennsylvania voters write precise dates on the outer envelope of mail-in ballots was again the subject of a court case Thursday, as advocates argued the mandate unfairly leads to otherwise valid votes being thrown out.

A five-judge panel of Commonwealth Court heard about two hours of arguments in a case that was filed in May, even though the date requirement has been upheld by both the state Supreme Court and the U.S. Third Circuit Court of Appeals.

The case was brought by the Black Political Empowerment Project, Common Cause and allied advocacy groups against the secretary of state and the boards of elections in Philadelphia and Allegheny County, which includes Pittsburgh. They argued that enforcing the date requirement violates voting rights and that none of the previous cases on the issue directly determined whether it violates the free and equal elections clause of the state constitution.

The number of potentially invalid ballots at stake is a tiny fraction of the electorate — on the order of 10,000 or more in Pennsylvania in past elections — and those voters tend to be comparatively older. Democrats have embraced mail-in voting far more than Republicans since it was widely expanded in Pennsylvania in 2019, months before the COVID-19 pandemic, as part of a legislative deal in which Democrats secured universal mail-in voting while Republican lawmakers secured an end to full party-list voting.

More than a third of the votes cast in this year’s state primary elections were by mail, according to the lawsuit.

Judge Patricia McCullough, a Republican on the panel, asked what authority the Commonwealth Court has over the legislatively enacted rule.

“Can this court step in and change the law because it wasn’t the best thing they should have written or because we don’t believe it serves a purpose? Is that a basis for us to change or declare something invalid?” he asked.

John M. Gore, a lawyer for the state and national Republican Party groups fighting the lawsuit, said the court would have grounds to do so only if the procedure were “so difficult as to deny the right to vote.” Gore argued before the justices that the date requirement is not so onerous as to deny people the right to vote.

The dates serve as a backup, Gore said, and provide evidence about when ballots were completed and mailed. The mandate also “emphasizes the solemnity of the voter’s choice” to vote by mail, and could help deter and detect fraud, he said.

County election officials say they do not use handwritten dates on envelopes to determine whether mail-in ballots were submitted on time. Mail-in ballots are typically postmarked, processed and time-stamped by election officials, and the presence of the ballots themselves is sufficient evidence to show they arrived in time to be counted by the 8 p.m. Election Day deadline.

Among the questions before the court panel is whether striking down part of the 2019 election law would trigger a provision that the entire law must also be struck down.

In recent years, mail-in ballots, and in particular the date requirement, have given rise to several legal cases in Pennsylvania. Earlier this year, the U.S. Court of Appeals for the Third Circuit upheld the mandate to include accurate, handwritten dates, overturning a district judge’s decision.

Two years ago, the Pennsylvania Supreme Court ruled that mail-in ballots cannot be counted if they are “contained in undated or incorrectly dated outer envelopes.” The justices were split 3-3 on whether mandating envelope dating under state law would violate provisions of the U.S. Civil Rights Act of 1964, which says immaterial errors or omissions should not be used to impede voting.

During the April primary, redesigned outer envelopes reduced the rate of rejected ballots, according to state election officials.