Don't expect a ruling on undated Pa. ballots anytime soon. Lawyers meet with Erie judge

ERIE — The fate of undated or incorrectly dated mail-in ballots in Pennsylvania is not expected to be resolved anytime soon in U.S. District Court in Erie.

The Pennsylvania State Conference of the NAACP and the other plaintiffs who sued to force the counting of the ballots have not filed an emergency motion, a request for a temporary restraining order or a preliminary injunction. The lack of those requests is keeping the case over the ballots off the fast track, for now.

U.S. District Judge Susan Paradise Baxter, seated in Erie, told the lawyers in the case at a telephone conference on Wednesday that she will handle the case on a regular timeline. She said she will shift to a swifter pace if the plaintiffs ask her to expedite the proceedings through an emergency motion or a request for a temporary restraining order, or TRO.

At this point, the plaintiffs do not see the need to expedite the case, said Witold Walczak, a lawyer for the American Civil Liberties Union of Pennsylvania, which is representing the plaintiffs.

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He told Baxter that the counting of the undated ballots, at this point, is unlikely to affect the outcome of the races in Tuesday's election. He said the number of the undated ballots is relatively small.

Litigating the case on a regular timeline will allow the parties to create an extensive record, because "this is a case that is likely to go up on appeal," Walczak said.

"We think this is an important issue that needs to be resolved," he said. "But there is no need to rush it."

As long as the counting of the undated ballots does not affect the results of Tuesday's election, "I don't think we need a TRO and we can litigate this case more leisurely," Walczak said.

Judge Baxter's ruling on ballots likely to be appealed

Baxter's ruling, whenever it occurs, will affect the fate of the undated or incorrectly dated ballots in Tuesday's election, as well as future elections in Pennsylvania. As Walczak suggested, Baxter's ruling is likely to be appealed to the 3rd U.S. Circuit Court of Appeals, based in Philadelphia, and possibly the U.S. Supreme Court.

The NAACP and the other plaintiffs filed their lawsuit over the undated ballots on Friday. On Monday, a similar lawsuit was filed by the campaign committee for Pennsylvania Lt. Gov. John Fetterman, a Democrat, in his successful race for U.S. Senate, as well as the Democratic Senatorial Campaign Committee and the Democratic Congressional Campaign Committee.

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Also on Monday, the Republican National Committee, the National Republican Congressional Committee and the Pennsylvania Republican Party filed a motion to intervene in the case, arguing that the undated ballots should not be counted.

Baxter on Wednesday said she would accept motions through Friday on the Republican committees' request to intervene. She combined the two lawsuits over the ballots into one case.

NAACP, other plaintiffs want votes counted

In the first suit, six plaintiffs — including the Pennsylvania State Conference of the NAACP and the League of Women Voters of Pennsylvania — sued Acting Pennsylvania Secretary of State Leigh M. Chapman and the board of elections in all of Pennsylvania’s 67 counties.

The plaintiffs want Baxter to bar the counties from rejecting mail-in ballots "based solely on a missing or incorrect date on the return envelope," according to the suit. The plaintiffs also want Baxter to bar the Pennsylvania secretary of state from certifying the 2022 election “or any subsequent election without counting such mail in ballots.”

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The requests are in response to decisions from the Pennsylvania Supreme Court on Nov. 1. The justices unanimously ruled that Pennsylvania counties must segregate and not count mail-in ballots with missing or incorrect dates.

That segregation occurred, and the state Department of State directed counties to allow voters to fix or "cure" undated or incorrectly dated ballots before the polls closed on Tuesday.

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But the state Supreme Court — down one seat due to the death of Chief Justice Max Baer in September — deadlocked 3-3 on whether envelope dates, mandatory under state law, would violate a section of the U.S. Civil Rights Act of 1964 that states that immaterial errors or omissions should not be used to prevent voting. The section is known as the Materiality Provision.

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The state Supreme Court’s inability to decide the issue concerning the Materiality Provision opened up the possibility that a federal judge would end up deciding the dispute.

Why is the ballot case is in federal court in Erie?

The NAACP and other plaintiffs said Baxter has jurisdiction over the case because seven of the boards of elections named in the suit are in counties in the Erie Division of U.S. District Court for the Western District of Pennsylvania, based in Pittsburgh. The seven counties in the Erie Division are Erie, Crawford, Elk, Forest, McKean, Venango and Warren.

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Baxter will have guidance as she considers the case over the ballots. The 3rd U.S. Circuit Court of Appeals ruled in May that the dates in question aren’t mandatory, but the U.S. Supreme Court on Oct. 11 deemed that decision moot, leading to the current litigation.

Contact Ed Palattella at epalattella@timesnews.com. Follow him on Twitter @ETNpalattella.

This article originally appeared on Erie Times-News: PA voting ballots ruling not expected soon in Erie court