Pa. Supreme Court will consider whether postal ballots without dates should be counted

The Pennsylvania Supreme Court said late Friday it will consider whether election officials should count votes cast by voters who fail to put a handwritten date on their mail-in or absentee ballots.

In a two-page order, it directed Republican Party officials to file briefs by noon on Monday and gave acting Secretary of State Lehigh Chapman until noon on Tuesday to respond. 

The order comes a little more than two weeks before the Nov. 8 election where voters will choose Pennsylvania’s next governor, U.S. Senator, and hundreds of state lawmakers.

The subject of litigation since no-excuse mail-in voting became an option for Pennsylvania residents in 2020, the question of whether lawmakers intended for ballots returned without the date on the outer envelope remains unsettled.

A group of voters, backed by the state and national Republican parties filed a lawsuit Sunday asking the state Supreme Court to use its power to take the case without it first going through the lower courts.

The voters and parties argued the language of Act 77, which authorized expanded voting by mail, and a 2020 decision from the Supreme Court are clear.

“A majority of this Court has already held that the General Assembly said what it meant and meant what it said: the date requirement is mandatory, and any ballot that does not comply with it may not be counted in any election after the 2020 general election,” the filing reads.

The Supreme Court ordered the parties to limit their briefs to three issues: Whether the Republican Party-backed voters have standing to sue, whether the Election Code’s instruction that voters “shall … date” mail-in and absentee ballot means those without dates should not be counted, and if that is the case, does the law run afoul of ballot access provisions in the federal Civil Rights Act.

Earlier this month, the U.S. Supreme Court dismissed a decision by a federal appeals court ruling that the dating requirement was a violation of the Civil Rights Act’s materiality clause, which bars states from disenfranchising voters over paperwork errors that have no bearing on the voters’ qualifications to cast a ballot.

The high court vacated the appeals court decision because the underlying 2021 judicial race from Lehigh County had been decided. In that case, the winning candidate prevailed by five votes after undated mail-in ballots were counted.

Although the state Supreme Court ruled in 2020 that the date requirement was mandatory, it did not consider whether it was at odds with the Civil Rights Act. Two Commonwealth Court decisions this year ordering election officials to count undated ballots relied in part on the federal appeals court ruling that was thrown out.