Pennsylvania sues 3 counties, including Berks, over counting mailed ballots

Jul. 12—Berks County is being sued by the state for failing to certify undated mail ballots received during the May primary election.

Pennsylvania's elections agency has sued three Republican-controlled county governments on Tuesday — Berks, Lancaster and Fayette counties — seeking to force their election boards to report primary results that include ballots with undated exterior envelopes. Those ballots have been the subject of several other lawsuits.

The Department of State had requested that counties submit the undated ballots, saying they would only be counted if the courts ruled they should be included in official vote totals.

But the Berks County commissioners declined to do so, deciding at a June 22 election board meeting not to certify and submit undated ballots. And now they're being sued over their inaction.

A Berks County spokesperson said Tuesday the county has received notice that the lawsuit was filed, but that it will not be providing further comment on this matter due to the ongoing litigation.

Elections Director Paige Riegner said previously that Berks received 645 undated mail ballots, with 507 cast by Democrats and 138 by Republicans.

Berks did submit two vote counts, with the one that did not include the undated votes being certified and the one with undated votes not certified. The state is requesting counties submit a certified count that includes the undated votes so the process will be able to move quickly and smoothly if a decision to add them to the total vote count is made.

At the June meeting, Berks First Assistant Solicitor Cody Kauffman recommended the board send the state the certified results including the undated mail ballots to be consistent with the court order.

Barnhardt made a motion to adhere to the directive from the state.

But Leinbach and Rivera said they couldn't support certifying undated ballots under the current law, and the motion failed for a lack of a second.

"How do I certify something that the law says can't count?" Leinbach asked. "And that the courts have not yet moved to finality. What they have ruled is what we have already done."

Riegner pointed out that the board provided the certified results without the undated ballots but did not merge those results with the tally of undated ballots, noting that what the county would be submitting is different from what it has already done.

Leinbach said that since the court order does not specifically mention certification of the results including the undated mail ballots he feels like the county has no authority to do what the Department of State is asking counties to do.

Rivera agreed with Leinbach, saying he would prefer to wait to certify that count until a final decision is made by the courts.

In its lawsuit, the Department of State called Berks, Lancaster and Fayette counties "outlier counties" that have not properly certified vote tallies from the May 17 election that included nominating contests for U.S. Senate, governor and most of the Legislature.

The 3rd U.S. Circuit Court of Appeals ruled May 20 that mail-in ballots without a required date on the return envelope must be allowed in a 2021 county judge race in Pennsylvania. Although the U.S. Supreme Court declined to halt the Senate vote-counting after the primary, three justices signed onto an opinion that said the 3rd Circuit was "very likely wrong."

A Commonwealth Court judge, in a separate case that was directly about reporting this year's Senate primary election results, ruled on June 2 that county boards of election should count mail-in votes that lack the security envelopes' hand-written dates, and report vote totals both with and without those ballots.

In the new case, the Department of State and acting Secretary of State Leigh Chapman under Democratic Gov. Tom Wolf want an order forcing the three counties to include in their primary election tallies, within three days, all absentee and mail-in voters, "even if the voter failed to write a date on the declaration printed on the ballot's return envelope."

They said in a filing that a ballot envelope's handwritten date "is not necessary for any purpose, does not remedy any mischief and does not advance any other objective," and that "allowing just three county boards to exclude votes that all other county boards have included in their returns creates impermissible discrepancies in the administration of Pennsylvania's 2022 primary election."

"Interpreting Pennsylvania law to allow a county board of election to exclude a ballot from its final certified results because of a minor and meaningless irregularity, such as a voter omitting a date from the declaration on a timely received ballot, would fail to fulfill the purpose of the Pennsylvania Election Code and would risk a conflict with both the Pennsylvania Constitution and federal law," wrote the state agency's lawyers from the attorney general's office.

Officials in Fayette and Lancaster have taken a similar stance to those in Berks.

The department said in the complaint that Fayette officials notified the state of its decision on June 26 and officials there ignored subsequent attempts to discuss the issue. Lancaster told the state of its decision on June 27 and reiterated it July 5. Messages seeking comment were left with Fayette and Lancaster county government officials on Tuesday.

Department of State press secretary Grace Griffaton said the agency had no further comment because the litigation is pending.

A 2019 law under which legislative Republicans eliminated straight-party voting also gave Democrats a broad expansion of mail-in voting in a state where their use had previously been severely restricted. Since the pandemic, Pennsylvania Democrats have voted by mail in far greater numbers than their Republican counterparts.

Pennsylvania voters are instructed to write a date — not necessarily the date when they signed their ballot — next to their signature on the outside of mail return envelopes. The handwritten dates on ballot envelopes do not determine whether voters are eligible or if they cast their ballots on time.

The Associated Press contributed to this report and Brooke Schultz, a corps member for the Associated Press/Report for America Statehouse News Initiative, contributed to this report. Report for America is a nonprofit national service program that places journalists in local newsrooms to report on undercovered issues.