While key Pa. races appear settled, the fight over mail-in ballots goes on | Wednesday Coffee

‘There should be some legislative fix to this,’ Widener Law School professor Michael Dimino said

November 9, 2022 7:20 am

(Capital-Star photo)

(*This story was updated at 8:56 a.m. on Wednesday, 11/9/22 to correct the name of Widener Law School Commonwealth.)

Another Election Day is in the books. And with a predicted Republican red wave looking a lot more like a ripple, Pennsylvania Democrats have cause to be in a celebratory mood this Wednesday morning.

At the top of the ticket, Democrats Josh Shapiro and John Fetterman each prevailed to respectively win key races for governor and U.S. Senate.

U.S. Rep. Susan Wild, D-7th District, one of the most vulnerable Democratic incumbents in the country, declared victory over GOP rival Lisa Scheller in a rematch of their 2020 contest. And in western Pennsylvania, Democratic state Rep. Summer Lee, D-Allegheny, appears to be on pace to become the first Black woman to represent Pennsylvania on Capitol Hill.

But even with those results — based on unofficial tallies — election workers across the state will wake up this Wednesday morning to continue the arduous task of counting hundreds of thousands mail-in ballots that will count toward the final vote count in all those races — and more.

And that means that legal wonks are now training their eyes on a federal court in western Pennsylvania.

Late last week, Fetterman’s campaign filed suit there, asking 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, the Capital-Star’s Peter Hall reported.

The eventual ruling in the case is important because it could finally provide state officials with some clarity on whether the commonwealth’s three-year-old mail-in balloting law comports with federal law.

The clarity is badly needed, according to *Widener Law Commonwealth professor Michael Dimino, who has tracked the law as it’s made repeated tours through the state and federal courts, going as far as the U.S. Supreme Court, which declined to hear a challenge last month.

“You decide to pass on these issues until the country hangs in the balance, and then you wonder why people think the courts get involved in political disputes,” Dimino told the Capital-Star during a phone interview on Tuesday.

(Image via The Philadelphia Gay News)

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 Capital-Star reported this week

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.

“That’s what Fetterman is arguing here. The date requirement serves no purpose, because as long as the ballot is received by the end the day on Election Day, you know that it must have been filled out at the appropriate time,” Dimino said. “But it has nothing to do with registration, which is what the federal statute deals with.”

The Pennsylvania Judicial Center in Harrisburg (Capital-Star file)

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.

During a news conference on Tuesday, acting Secretary of State Leigh M. Chapman declined to comment on the case, and she did not provide a timeline for when a ruling might be issued in the case.

Ultimately, many of the controversies around the state’s mail-in balloting law, from the dating requirement to rules governing so-called “pre-canvassing” or the window in which counties are allowed to process mail-in ballots, could be resolved by the General Assembly, Dimino suggested.

But the Republican-controlled General Assembly adjourned for its election season break without taking action on a reform bill — and common ground with Democratic Gov. Tom Wolf, who leaves office in January, has remained elusive.

“There should be some legislative fix to this,” he said.

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John L. Micek

A three-decade veteran of the news business, John L. Micek is the Pennsylvania Capital-Star's former Editor-in-Chief.