Fetterman campaign joins court fight to have undated ballots counted

Democratic U.S. Senate nominee John Fetterman’s campaign has joined the call to have a federal court rule in Pennsylvania’s long-running political fight over mail-in ballots.

Two voters, backed by Fetterman’s campaign and the state Democratic Party, filed the suit in U.S. District Court in Erie on Monday.

They argue that not counting mail-in ballots solely because they lack a handwritten signature violates federal law by disenfranchising voters over an immaterial error. The only date that matters is the date the ballot is returned to the county elections office, the plaintiffs argue.

“The date on a mail ballot envelope thus has no bearing on a voter’s qualifications and serves no purpose other than to erect barriers to qualified voters exercising their fundamental constitutional right to vote,” the plaintiffs claim in court papers.

Fetterman’s suit is the second in the latest round of suits seeking clarity on Pennsylvania’s vote-by-mail rules, which have been questioned in every election since 2020, when no-excuse mail-in ballots became an option. 

Undated ballots have decided the outcome of at least one election when counted, giving a Lehigh County judicial candidate a five vote victory months after the 2021 election. Philadelphia posted lists Monday of more than 3,000 people whose ballots were undated or incorrectly dated. Allegheny County’s list had nearly 1,000 voters who did not correctly date their ballots.

A federal appeals court ruled that the date requirement violates the Civil Rights Act because it prevents voters from casting a ballot over a paperwork error that is not material to a voter’s qualifications to vote. 

The U.S. Supreme Court vacated the decision last month because the underlying election dispute had been settled, meaning it cannot be cited as a precedent in other cases.

The Republican Party asked the Pennsylvania Supreme Court late last month to address the question. The high court, which has had only six members since Chief Justice Max Baer died in September, said it could not issue a decision because it was deadlocked 3-to-3.

Instead, the court ordered county election officials to set aside and not count any undated or incorrectly dated ballots.

Last week, state Senate GOP leaders admonished acting Secretary of State Leigh
Chapman for directing counties to include undated ballots in their counts after the U.S. Supreme Court dismissed the federal appeals court decision saying they must be counted. 

The state Supreme Court issued its order to set aside undated ballots on Nov. 1, after which the department of state changed its guidance to counties.