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Update, Nov. 1: Election officials should not count undated mail ballots on Nov. 8, Pa. high court rules
HARRISBURG — Pennsylvania’s Supreme Court is expected to soon rule on a case that could decide whether undated mail ballots can be counted in the quickly approaching Nov. 8 election.
The case comes after years of highly partisan litigation that yielded no firm legal consensus on how counties should treat the ballots.
Under state law, a person who casts a mail ballot must sign and date a declaration on the outer envelope. Undated ballots have missing or incorrect dates, but are otherwise turned in on time to county election offices and are eligible to be counted.
While the issue doesn’t appear to be widespread, there have been enough of these ballots cast in recent elections to decide close races.
This new case on undated ballots splits down fault lines that have become common in Pennsylvania election litigation.
The attorneys who filed the lawsuit represent state and national Republican groups, as well as individual GOP voters, who argue undated ballots should be thrown out. They’re suing all 67 of Pennsylvania’s counties and the commonwealth’s Democratic administration, led by Gov. Tom Wolf and Acting Secretary of State Leigh M. Chapman. The Democrats and many counties argue the undated ballots should be tabulated.
Attorneys for both sides agree this case may not end litigation over undated ballots once and for all. Pennsylvania’s Supreme Court has split on this issue before and it’s now missing a justice following the death of Chief Justice Max Baer in September. That makes a tie possible. Even if the court hands down a decisive ruling, there’s a good chance that Republicans will appeal that decision to federal courts.
Ahead of the court’s decision, here’s the legal background on undated mail ballots and the arguments the Supreme Court justices are considering.
What are Republicans arguing?
This new case stems from the Republican National Committee, National Republican Congressional Committee, Pennsylvania GOP, and some individual Republican voters filing what’s known as a King’s Bench Petition to the Pennsylvania Supreme Court.
This kind of petition asks the state’s high court to use its unique power to bypass the lower courts and directly take up matters of particular importance. The court granted the Republicans’ request on Oct. 21.
The GOP groups asked the justices to rule that ballots submitted without a date should not be counted — even if they are turned in on time. Their request goes a step further than some prior cases by claiming that ballots with an incorrect date should also be thrown out. Counties have typically accepted these ballots in the past.
In their brief to the state Supreme Court, the Republican attorneys said that they would settle for counties being ordered to segregate these undated or misdated ballots, presumably in case future litigation finds the votes shouldn’t be accepted.
One of the GOP groups’ biggest claims is that the General Assembly’s meaning “could not have been clearer” when it passed a state law saying voters “shall…fill out, date and sign the declaration” printed on their ballot’s outer envelope, and that there’s no good reason for the court to rule differently.
They also seek to rebut an argument with which Democrats and voting rights groups have had some success: that date requirements are virtually useless for detecting fraud.
Matt Haverstick, an attorney who frequently works for Republicans in election cases but isn’t involved with this one, said a date requirement alone won’t always help counties identify a ballot submitted by an ineligible voter, but that doesn’t mean the requirement is useless. He sees measures like these as fail-safes and redundancies.
“It’s not a panacea. It’s not a magic bullet,” he said. “But in aggregate, all these anti-fraud measures are really helpful. You could maybe pick apart any one of those, but that’s not the point.”
Another core part of the GOP argument is more controversial. It centers on the “independent state legislature” doctrine, which is increasingly popular in right-wing legal circles.
Long considered a fringe theory, it posits that state legislatures are the ultimate authority on election matters and that Pennsylvania’s executive and judicial branches don’t have any power to check a legislature’s decisions.
“Accordingly,” the GOP attorneys wrote, “state courts and executive branch officers wield no authority to regulate federal elections and may not deploy broad and amorphous state constitutional provisions to rewrite state laws governing those elections.”
Effectively, they claim that even if the court doesn’t agree with their other arguments, it doesn’t matter because the governor’s administration and the court itself have no power to interpret state law that way.
The Pennsylvania Supreme Court has not indicated it’s willing to entertain that argument, but members of the U.S. Supreme Court might be open to it.
What is the Democratic administration arguing?
The Wolf administration has consistently sought to count undated and misdated mail ballots since the issue first became prominent in 2020. In its response to Republicans’ latest litigation, it supported that position with a few key arguments.
The central premise of the administration’s argument is the belief that Pennsylvania’s election law should be interpreted to enfranchise more people — and that decades of court rulings have done so.
“Where there is a choice, the Court should prefer that construction of the law that ‘favors the fundamental right to vote and enfranchises, rather than disenfranchises, the electorate,’” the administration’s attorneys wrote in their brief to the state Supreme Court, quoting a 2020 Pa. Supreme Court decision on elections.
Attorneys for the state also wrote that although state law says voters “shall” date their mail ballots, that doesn’t necessarily mean undated ballots must be discarded. A separate part of the state Election Code, they said, states that county election officials should not discard ballots if the voter declaration on the ballot’s outer envelope is “sufficient.”
They argue that a ballot with a missing date is “sufficient” because under today’s election law, the date doesn’t provide county election officials with significant useful information. They dismissed Republicans’ argument to the contrary, writing that they “can barely muster an argument as to why the date matters in any respect, devoting just three paragraphs to the issue.”
The Wolf administration also argues that the requirement that ballots “shall” be dated is a relic of a previous version of Pennsylvania’s election law.
Under that old code, deadlines for casting a mail ballot and returning that mail ballot were different, and the law explicitly directed counties to set aside ballots with wrong or missing dates. When those differing deadlines were merged into one in 1968, lawmakers removed the additional date-related direction but kept the language saying ballots “shall” be dated. That language remains in the Election Code today.
“Thus,” attorneys for the Department of State argued, “the only instruction that remains in the Code relating to the voter declaration is a longstanding requirement that the board must satisfy itself that the declaration is ‘sufficient.’”
And even if the court decides that Pennsylvania’s Election Code requires undated or misdated ballots to be set aside, the state’s attorneys argued that such a decision would violate the federal Civil Rights Act of 1964.
That act, they wrote, “prohibits denying the right to vote based on certain errors or omissions if the error or omission is immaterial to determining a voter’s qualifications.” Put differently, the state argues that a ballot date has nothing to do with a voter’s eligibility, and doesn’t communicate useful information to county election officials.
Though the Pennsylvania Department of State is the primary respondent in this case, it is not alone. The GOP groups are also suing all 67 counties, many of which filed their own responses.
Though the department has instructed the counties to tabulate undated mail ballots, the decision is technically up to each county since the legal landscape is unsettled.
Most of the counties that submitted responses to the Republican lawsuit said they currently plan to count undated mail ballots. Many took no position on the lawsuit, saying they’ll comply with whatever the court decides. Others filed responses opposing the GOP lawsuit to some extent — 14 counties, for instance, entered a joint response saying that the Republicans filing suit so close to an election is “questionable, if not suspect.”
One outlier is Butler County. Though it did not file its own response — or at least, the court hasn’t yet publicized that response — the Republican attorneys noted in their argument that Butler “and perhaps some [other] county boards of elections” intend to throw out all undated or misdated ballots, “absent an order of the Pennsylvania Supreme Court to the contrary.”
Butler County’s Republican Committee — which is not the same as its board of commissioners or election officials — also filed a joint brief with GOP committees in Lawrence and Cambria Counties and several individual voters supporting the Republican lawsuit.
What do we know about the justices’ thoughts?
Though the question of what to do with undated ballots has never been fully resolved in state or federal court, lots of judges have weighed in on it over the years — including most of the six Supreme Court justices who will now be deciding the case.
They handed down their biggest decision on undated ballots just weeks after the 2020 general election, when Pennsylvania was inundated with litigation from Republicans contesting various groups of ballots.
The 2020 case was complicated. It involved two Western Pennsylvania counties — one that had counted undated mail ballots, and one that hadn’t. The discrepancy had put the outcome of a state Senate race in question.
The state’s high court ultimately issued a split decision. Three Democratic justices signed an opinion saying undated mail ballots should be counted. The two Republicans and a fourth Democrat issued one saying they shouldn’t be counted. And the seventh justice, Democrat David Wecht, issued a mixed opinion of his own, saying undated ballots should be counted in the 2020 election, but not in the future.
The court’s current composition slightly differs from the previous one. Former Republican Chief Justice Thomas Saylor has since retired and been replaced by fellow Republican Justice Kevin Brobson. The subsequent chief justice, Democrat Max Baer, died in September, leaving the court short a member.
If the justices return to the same arguments they used in 2020, they could vote four to two in favor of discarding undated mail ballots. But attorneys for both Republicans and Democrats agree these cases are different enough, and enough litigation has since happened, that the judges could easily change their thinking without contradicting themselves.
A split three-to-three decision is possible, but that would leave the issue in legal limbo. It also wouldn’t clarify how counties should handle undated mail ballots, and wouldn’t give the parties anything to appeal to federal court if they disagree with the decision.
If the justices rule that undated mail ballots should be counted, Republicans will likely appeal the decision — particularly if it hinges on the argument that discarding those ballots violates federal law.
The U.S. Supreme Court already vacated a Third Circuit decision that relied on that rationale earlier this month, though that move was procedural and didn’t address the substance of the case. However, three of that court’s conservative justices have separately indicated that they disagree with the Third Circuit’s take that the date requirements violate federal law.
Election attorneys contacted by Spotlight PA tended to agree that the Wolf administration and allied groups are less likely to appeal the issue to the U.S. Supreme Court if they lose.
There’s no schedule for the court’s decision, and they aren’t hearing oral arguments in the case. But election attorneys expect a ruling soon — likely before Election Day.
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