The scramble to figure out which Pennsylvania mail-in ballots to count and reject based on handwritten dates continued Saturday.
A state Supreme Court order Tuesday — much earlier hoped to settle the case for this election — ordered counties to reject mail-in ballots missing those dates, as well as those where the voter put an incorrect date on their ballot .
But the decision has since caused uncertainty among election administrators about what exactly constitutes an incorrect date and drawn new litigation from advocates who say rejecting ballots over what amounts to an error threatens to disenfranchise potentially thousands of legitimate voters.
On Saturday, the state Supreme Court unexpectedly issued an additional order clarifying its definition: Mail-in ballots must be rejected in this election if the handwritten dates fall before September 19, 2022, or after November 8 (Election Day), and absentee ballots must be rejected if it is dated before 30 August 2022 or after 8 November.
Absentee and mail-in ballots are essentially the same, but under state law, “absentee ballots” are for voters who are unable to make it to their polling places on Election Day, while “mail-in ballots” are for anyone else who chooses to vote by post September 19 marks the start of the state’s 50-day mail-in voting window, when counties can begin printing and sending mail-in and absentee ballots. Counties treat absentee and mail-in ballots the same way and send them out at the same time.
The court’s separate time frame for absentee ballots appears to come from aggregating those votes with another type of absentee ballot — those sent to military and overseas voters, known as UOCAVA for the federal law that governs them — that are 70 days before be sent out. Election Day, which this year is August 30.
Saturday’s order provides a specific date range for counties that were concerned that they would have to decide for themselves what is a correct or incorrect date without any direction from the court. The order was issued on behalf of the court and not in the name of specific judges.
The order means ballots will be counted as long as they have any date within the given range – even if they are dated after the ballot was actually returned, or before the ballot was even printed.
Several lawyers immediately noted that it could bolster a legal argument made by Democrats and voting rights groups that the state’s dating requirement is merely a technicality not used to determine the legitimacy of the vote. Tossing out votes on such a technicality, they argue, violates federal civil rights law. A series of courts have considered that argument, including the state Supreme Court, which reversed 3-3 in its Tuesday order.
“While we will closely follow the orders of the Pennsylvania Supreme Court, today’s supplemental order supports what I have always said: that a handwritten date is not material,” Seth Bluestein, the lone Republican on Philadelphia’s Board of Elections, told the city commissioners, said. “The only thing that matters is that the declaration on the ballot envelope is signed between when ballots are sent and election day.”
On Friday night, a coalition of voting organizations used that argument in a new lawsuit they filed in federal court to force Pennsylvania counties to accept all mail-in ballots received on time, regardless of the handwritten date.
The groups argue that rejecting ballots based on the handwritten date — when the date is actually used for nothing — will result in the disenfranchisement of thousands of qualified voters, especially in communities of color.
“Refusing to count votes based on immaterial paperwork errors has an oppressive effect … by erecting yet another roadblock preventing them from voting and having their votes counted,” the lawsuit filed in Pittsburgh’s West -District of Pennsylvania was filed.
The groups are asking the court to find that “the rejection of timely submitted ballots based solely on a missing or incorrect date” violates what is known as the Materiality Provision of the Civil Rights Act. They are asking the court to stop counties from rejecting undated or misdated ballots and prevent counties or the state from certifying election results unless such ballots are included in those counts.
The lawsuit was filed by the Pennsylvania NAACP; League of Women Voters of Pennsylvania; Philadelphians Organized to Witness, Empower and Rebuild; Common Cause Pennsylvania; Black Political Empowerment Project; and Make the way Pennsylvania. They are represented by the ACLU of Pennsylvania.
Whether undated ballots should be accepted or rejected has been the subject of back-and-forth litigation for the past two years. While the battle over which ballots to count or reject involves legal and voting rights questions, it’s also a highly political one, especially since Democrats use mail-in ballots at much higher rates than Republicans in Pennsylvania. Political and legal battles have followed every election since 2020.
A half-dozen state and federal courts — at every level from local district courts to the U.S. Supreme Court — issued conflicting rulings in response to court challenges by groups on both sides of the political divide.
Earlier litigation focused primarily on the state law requirement that voters sign and date their ballots. A new wave of litigation has brought the federal civil rights argument to the fore this year. A federal appeals court in Philadelphia agreed with that argument, leading a state court to follow that reasoning and order undated mail ballots counted in the May primary.
But the federal court decision was vacated by the U.S. Supreme Court last month, leading to the challenge, led by the Republican National Committee, which led to Tuesday’s order by the Pennsylvania Supreme Court that both undated and wrongly dated ballots must be rejected.