Pennsylvania appeals court rules (again) that undated vote-by-mail ballots must be counted
A Pennsylvania mail ballot envelope (Capital-Star photo)
Less than a week before the presidential election, a Pennsylvania court has again ruled that mail-in ballots returned with missing or incorrect dates must be counted.
The decision Wednesday stems from a lawsuit by two Philadelphia voters whose mail ballots in a Sept. 17 special election for a pair of state House seats were disqualified even though they were returned on time. They were among 69 ballots the Philadelphia Board of Elections refused to count because voters did not follow the instructions to write the date on the outside envelopes of their ballots before returning them.
A Philadelphia judge ruled in favor of the voters who are represented by the American Civil Liberties Union of Pennsylvania and the Public Interest Law Center. The Philadelphia Board of Elections appealed and was joined by the Republican National Committee and the Republican Party of Pennsylvania.
In a 3-2 decision, a Commonwealth Court panel ruled that the requirement to date the envelopes is unconstitutional because it denies the right to vote because of minor and inconsequential errors and serves no compelling governmental purpose.
“Pennsylvania voters cannot be disenfranchised for trivial reasons,” Stephen Loney, senior supervising attorney of the ACLU of Pennsylvania, said. “The dates written on return envelopes are completely meaningless, and everyone agrees that these ballots are from eligible voters and were timely received. Disqualifying voters for minor errors is a violation of the state constitution, which errs on the side of the voter.”
Lawyers for the Republican parties did not return phone calls seeking comment Wednesday.
The decision largely tracks an Aug. 30 ruling by the Commonwealth Court in a similar mail-in ballot case that was later thrown out by the state Supreme Court on procedural grounds. The court found that election officials in all 67 Pennsylvania counties should have been allowed to weigh in.
How the ruling could affect the handling of ballots outside of Philadelphia remains unclear. And the Philadelphia Elections Board and Republican parties have the right to appeal in the state Supreme Court.
“We applaud the Commonwealth Court for its ruling recognizing the rights of voters, and we hope that every county will abide by this ruling in its processing of mail ballots next month,” said Mimi McKenzie, legal director of the Public Interest Law Center. “Because today’s decision may not be the last word on this issue, we still advise voters to date their return envelope, take any opportunity they have to cure mistakes, or vote provisionally on election day if they made a mistake on the envelope date.”
The Supreme Court recently has deferred action on questions about mail-in ballots, saying that rulings that change the rules risk causing confusion with the election so close. In dissenting opinions, Commonwealth Court judges Matthew Wolf and Patricia McCullough said Wednesday they opposed deciding the Philadelphia special election case now because doing so contradicts the Supreme Court’s admonition that such decisions should be made after the election.
In the opinion for the Commonwealth Court majority on Wednesday, Judge Ellen Ceisler said no such concern exists. Ceisler noted that the court was only being asked to decide the question of constitutionality with regard to the 69 ballots in the special election. “We are not being asked to make changes with respect to the impending 2024 General Election,” Ceisler said.
Courts have been asked to address the ballot dating question in every election since voting by mail without an excuse became an option in 2020.
Ceisler said that since the state Supreme Court threw out the earlier decision finding the dating requirement unconstitutional, the court is essentially “back to square one” on an issue of first impression. She concluded, as the court did in its August decision, that various courts have established that the handwritten date serves no purpose and thus disqualifying ballots without the date deprives voters of a fundamental right and is unconstitutional.
“We cannot countenance any law governing elections, determined to be mandatory or otherwise, that has the practical effect in its application of impermissibly infringing on certain individuals’ fundamental right to vote,” Ceisler said.
