Stacks of boxes holding mail are seen at a U.S. Post Office sorting center. Photo by Justin Sullivan | Getty Images.
A state court judge ruled Friday that three Pennsylvania counties must include undated postal ballots in their final tallies of primary election votes, ending an impasse that has delayed certification of the election results since May.
Commonwealth Court President Judge Renee Cohn Jubelirer ordered Berks, Fayette and Lancaster counties’ boards of elections to count the ballots and certify the results before Wednesday. An attorney for Fayette County said the elections board will decide early next week whether to appeal to the state Supreme Court. An attorney for Berks and Lancaster counties did not return a call.
A Department of State spokesperson said in a statement that officials were pleased that the court had ruled that under state and federal law, counties may not refuse to count undated mail-in ballots.
The counties’ refusal to count the ballots means that the certification of results in statewide races for U.S. Senate, governor and lieutenant governor remain unofficial.
The question of whether election officials should count mail-in ballots returned without dates that are otherwise valid has been an issue since 2020. That’s when a change in state election law first allowed voters to vote by mail without an excuse for not going to polls.
Since then, Pennsylvania appeals courts and two federal courts have tackled the question, but only the U.S. 3rd Circuit Court of Appeals has issued a binding opinion.
The 3rd Circuit ruled this year in a Lehigh County judicial race from 2021 that not counting undated mail-in ballots was a violation of the federal Civil Rights Act’s ban on voting requirements that are not material to a person’s qualifications to vote.
The judicial candidate who lost the election by four votes asked the U.S. Supreme Court last month to review the ruling, but the court has not issued a decision on the request.
The provision of the Election Code that allows no-excuse mail-in voting says ballots must be placed inside a return envelope with a declaration “the elector shall then fill out, date and sign.”
In her decision in the most recent case, Cohn Jubelirer found that Pennsylvania courts have consistently found the word “shall” in the Election Code means something is mandatory only when it is essential to the integrity of an election.
Uses of the word shall in the election code other than the date requirement are clearly not mandatory, Cohn Jubelirer wrote.
“There is no reason to think the General Assembly intended to invalidate ballots cast in polling places simply because the voting booths do not have doors or curtains, or the paper ballots are not folded, notwithstanding that the General Assembly used the word ‘shall,’” Cohn Jubelirer wrote.
Cohn Jubelirer concluded that the General Assembly did not intend mail-in ballots to be invalidated on the basis of a missing date.
“Such defect, in the absence of fraud, should not be used to ‘to throw out a ballot,’’’ Cohn Jubelirer said.
She also found that the 3rd Circuit decision in the Lehigh County case requires the three counties to include the undated ballots in their vote tallies.
Cohn Jubelirer reached a similar conclusion in a challenge by Republican U.S. Senate candidate David McCormick, who sued to have undated ballots counted as he trailed Dr. Mehmet Oz by about 1,000 votes. McCormick’s bid to close the gap was unsuccessful and Oz will face Democratic nominee John Fetterman in November.
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