The Pennsylvania Supreme Court ordered election officials to not count any mail-in or absentee ballots that are received with an undated or incorrectly dated outer envelope during the upcoming election.
The order was made Tuesday, one week before voting concludes in the Nov. 8 election, in a lawsuit filed by state and national Republicans.
Under Pennsylvania law, anyone 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 and are eligible to be counted.
In the same case, the justices split 3-3 on whether not counting the ballots would be a violation of the U.S. Civil Rights Act of 1964, which states that immaterial errors or omissions should not be used to prevent voting.
Chief Justice Debra Todd and Justices Christine Donohue and David N. Wecht found it violated the law; Justices Kevin M. Dougherty, Sallie Updyke Mundy and and P. Kevin Brobson found it did not.
The justices didn’t make clear how they voted on the issue of counting the ballots, or immediately release opinions laying out their reasoning.
The justices ordered election officials to “segregate and preserve any ballots contained in undated or incorrectly dated outer envelopes.” That could leave the ballots’ fate open to further federal lawsuits.
The Supreme Court’s order goes against Democratic Gov. Tom Wolf’s administration’s position on the issue, and effectively reverses the state’s guidance on whether to count the ballots just days before the election concludes.
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Several hours before the court order was released, acting Secretary of State Leigh Chapman was asked about her department’s guidance. She said guidance for county election boards was to count undated or wrongly date ballots, but noted the court’s ruling could change that.
“When that Supreme Court case comes down, we will issue guidance accordingly to counties,” Chapman said.
The status of ballots without properly dated envelopes has been litigated over and over again since the use of mail-in voting in Pennsylvania was expanded in 2019 but no firm legal consensus has emerged yet.
In the current case, state and national Republican Party organizations and several GOP voters sued Chapman and all 67 county election boards seeking immediate review by the Supreme Court, bypassing lower courts. The suit was filed because some county officials planned to throw out ballots without the proper dates, while others were expected to count them. The individual voters were dismissed from the case Tuesday after the court found they lacked standing.
Undated ballots played a crucial role in the victory of Democrat Zachary Cohen over Republican David Ritter in a 2021 Lehigh County judge race. Cohen beat Ritter by just five votes when the issue was decided in June. But last month, the U.S. Supreme Court sided with Ritter and threw out a lower court’s ruling to count the ballots, leaving the issue to be played out again in the courts (it didn’t change the results of the election, as Ritter conceded the election in June).
Pennsylvania counties have reported receiving more than 850,000 completed mail-in ballots out of the roughly 1.4 million requested by voters. About 70% of requests have come from Democrats and about 20% from Republicans, according to the Associated Press.