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Days before voters head to the polls, Pennsylvania’s long-running political argument over whether to count undated mail-in ballots has been put in the hands of a federal judge.
The suit, filed Friday in the U.S. District Court for the Western District of Pennsylvania, asks a judge to bar Pennsylvania election officials from rejecting mail-in ballots solely on the basis of a missing or incorrect date or from certifying election results without counting such ballots.
It is the latest in a series of suits that have so far left officials without a clear answer on whether Pennsylvania’s vote-by-mail rules comport with federal law.
The suit came as acting Secretary of State Leigh Chapman, in response to a state Supreme Court order, told county election officials on Friday to mark undated or incorrect ballots as invalid in the statewide election system, and set them aside without counting them.
The instructions mean that thousands of ballots that are returned by the Election Day deadline and that are otherwise valid would not be counted over a “meaningless date,” the civil rights and fair voting groups behind the latest lawsuit argue.
The lawsuit was filed on behalf of the Pennsylvania State Conference of the NAACP, the League of Women Voters of Pennsylvania; Philadelphians Organized to Witness, Empower and Rebuild; Common Cause Pennsylvania; Black Political Empowerment Project; and Make the Road Pennsylvania.
“Litigation over the past year has demonstrated that it is Pennsylvania voters who will lose unless this court enjoins defendants from disqualifying timely submitted ballots from eligible voters simply because they omitted a meaningless date, or wrote the wrong date, on the return envelope,” the plaintiffs argued in their filing.
It names Chapman, and the boards of elections in each of Pennsylvania’s 67 counties, as defendants.
On Saturday, the Department of State, which oversees elections, asked county elections officials to provide counts of undated or incorrectly dated ballots. Chapman said Monday that the survey of county election offices was to gather data in anticipation of litigation over the election results but that results had not been received.
Although several courts have examined the issue of undated or incorrectly dated ballots since mail-in voting became an option in 2020, there is no precedential ruling to guide officials on whether the date requirement complies with federal law.
The state Supreme Court ruled after the 2020 presidential election that undated ballots should be counted in that election, but not in future elections. The ruling focused on the language of the vote-by-mail rules and whether the requirement to date the return envelope was mandatory.
The majority in that case suggested, but did not decide, that throwing out mail-in ballots over missing or incorrect dates could violate the Materiality Clause of the federal Civil Rights Act, which prohibits election officials from stopping a person from voting over paperwork errors that aren’t material to a person’s qualifications to vote.
A federal appeals court ruled earlier this year that rejecting undated ballots was a violation of the federal law and ordered Lehigh County election officials to count hundreds of undated ballots, deciding a judicial election by just five votes.
The U.S. Supreme Court threw out the appeals court decision last month at the request of the Republican judge candidate who lost because the underlying election had been decided.
The Republican Party asked the Pennsylvania Supreme Court late last month to decide whether the Civil Rights Act applies to the dating requirement.
The court, which has had only six members since Chief Justice Max Baer died in September, deadlocked 3-to-3 and could not issue a ruling. Instead, it ordered election officials to segregate undated ballots and to not count them.
Although a Commonwealth Court judge has twice ruled that the date requirement violates the Civil Rights Act, those decisions are not precedential, meaning they apply only to those cases.
The new lawsuit argues that voters – like those in the previous lawsuits who had their ballots counted – would be unlawfully disenfranchised if mail-in ballots are thrown out over an immaterial date.
“They filled out their mail ballots, sent them in on time, and signed the declaration on the return envelope, but made a mistake on the return envelope by omitting a handwritten date,” the suit reads. “The impending disenfranchisement of these voters constitutes irreparable harm for which there is no adequate remedy at law and for which this court’s intervention is required.”
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