Pennsylvania court orders end to primary election stalemate: Count the undated mail ballots

A Pennsylvania judge ordered three counties to count undated mail ballots in their certified results for the primary election, breaking a standoff between those counties and the Department of State.

“[T]he lack of a handwritten date on the declaration on the return envelope of a timely received absentee or mail-ballot does not support excluding those ballots from the Boards’ certified results under both Pennsylvania law and … the [federal] Civil Rights Act,” Commonwealth Court President Judge Renée Cohn Jubelirer wrote Friday.

The ruling marked a significant victory for the state and proponents of counting undated mail ballots, as Cohn Jubelirer went further than in a previous opinion to say that state and federal law protect the counting of the undated ballots. In fact, she said, previous court decisions were based on a different set of known facts and also not precedential.

If it stands, that change could mean hundreds or even thousands of additional votes could be counted in future elections.

Berks, Fayette, and Lancaster Counties had been locked in a stalemate with the Pennsylvania Department of State over whether to count undated mail ballots. The disagreement has delayed certification of the May 17 primary for months.

Cohn Jubelirer ordered the counties to count the undated mail ballots and include them in new certified totals “as soon as possible” and no later than Wednesday.

Fayette County officials were reviewing the decision Friday “for the purposes of considering an appeal to the Pennsylvania Supreme Court,” said Thomas W. King III, a lawyer for the county. Lancaster County officials declined to comment, and a Berks County spokesperson said that county had not yet decided Friday whether it would appeal.

“We are pleased that the Court has affirmed that under federal and Pennsylvania law, these three county boards of elections cannot refuse to certify undated ballots,” a spokesperson for the Pennsylvania Department of State said in a statement.

State law requires voters to handwrite a date on the outer envelope when returning their ballots, and the three counties followed the practice they and most other counties had over the past two years: Mail ballots without those handwritten dates were rejected and not included in the vote count.

But the state, relying on new federal and state court rulings, said undated ballots should be counted — at least in this election, and potentially in all of them moving forward. The Department of State repeatedly pressed counties to count undated ballots, and most ultimately did.

When the 67 counties certified their results to the state, the state knew the three counties hadn’t counted the undated mail ballots in their certified totals. Those final county-level results are combined for races that cross county lines, including the statewide races for governor and U.S. Senate. That left the department in the position of either certifying results it knew were counted differently across counties or of somehow forcing uniformity across the state.

While the department oversees elections generally, it has very little official power to force counties into alignment with its positions. All counties ultimately make their own decisions on election administration, including the counting and certifying of votes.

The result was a slow-rolling certification crisis: Three counties refused to accept the state’s demands to count undated ballots, the state was unable to compel them, and the results of the primary remain unofficial and uncertified long after the election should have been complete. The department sued the three counties July 11.

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In underscoring the state’s lack of power — or clear mechanism for resolving a conflict — the standoff has further exposed weaknesses in the electoral system, and specifically the certification process, that may once have been theoretical and academic but are now concrete vulnerabilities.

The situation has also raised new questions about the Pennsylvania Department of State’s internal processes, after an embarrassing revelation earlier this month: A fourth county, Butler, had also refused to count undated ballots; it had told the state; and state officials certified the county’s results anyway.

A top elections official apologized to the court for the mistake, which he explained as occurring because the state had been using a spreadsheet, updated by hand, to keep track of which counties were including undated ballots. Butler County had been misclassified in the spreadsheet as a result of “human error,” the state said.

In a later court hearing, the state said it would not move to recertify Butler County’s results and have the undated mail ballots counted, saying the legal landscape around decertifying and recertifying results is murky.

Undated mail ballots have been a political and legal battleground since Pennsylvania dramatically expanded mail voting in 2020. That year, the state Supreme Court held in a fractured decision that state law requires ballots must be dated to count. But in the next election, the 2021 primary, several counties, including Philadelphia and its suburbs, moved to count undated ballots, prompting impeachment threats from the Republican-controlled legislature.

Lehigh County’s undated mail ballots in last November’s election became the subject of a state lawsuit and then a federal one. And days after this year’s primary, it was that federal lawsuit that briefly shook a recount in the Republican Senate primary: A federal appeals court ruled that rejecting undated mail ballots amounted to throwing out ballots on a technicality, violating federal civil rights law.

A flurry of legal activity followed, which led to Cohn Jubelirer ordering counties to report two sets of results — one with undated mail ballots and one without — to the state.

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That case ended after Republican Senate candidate David McCormick conceded the election to Mehmet Oz. While the stakes were relatively low in this case — the winners are clear, with no races appearing to hinge on undated ballots — the standoff exposed an ongoing weakness in Pennsylvania’s election system.

Certification, the act of officially signing off on the vote count, is an important but largely ministerial task. The law doesn’t provide for what happens if something goes sideways. What happens if a county simply refuses to certify its votes or, as in this case, certifies it in a way the state disagrees with? What if counties’ different decisions about elections creates a patchwork of policies that makes voting rights unfairly dependent on which county a voter happens to live in?

Pennsylvania election law doesn’t have a specific mechanism for breaking such a stalemate. That leaves it ultimately to the courts.

On Friday, the Commonwealth Court did just that.

Count the ballots, it said.

The issue of undated mail ballots has been complicated because different courts have taken different approaches.

State court rulings, including the complicated split decision from the state Supreme Court in 2020, had focused on the question of whether state law’s requirement that ballots be dated means undated ballots must be thrown out. This year’s federal ruling focused not on the requirement itself but on whether the act of throwing out the ballots violates voters’ rights.

On Friday, Cohn Jubelirer disagreed with the previous state court decisions, saying they aren’t precedent and were based on different sets of known facts. The state law requirement that voters “shall” date their ballots simply tells them what to do, she said — but it doesn’t determine whether a ballot is legitimate and should be counted. As part of her argument, she cited the legislation’s lack of a stated punishment for not dating a ballot.

“Ultimately, the Court must be mindful that the Election Code is to be liberally construed and that only compelling reasons, not minor irregularities, should be used ‘to throw out a ballot,’ and that should occur ‘very sparingly,’” the judge wrote.

And even if the state law were read, as it had been previously, to require ballots only be accepted if they have dates on them, federal civil rights law would stand in the way, Cohn Jubelirer said. She agreed with the federal appeals court’s finding that the act of rejecting undated mail ballots — that were received on time and have no other issues — violates federal civil rights law because votes would be thrown out on a technicality.

If Friday’s ruling stands, it could mean counties will count undated mail ballots this November and in future elections. But further litigation over the issue, whether in this case or elsewhere, is likely.

If one of the counties appeals to the Pennsylvania Supreme Court, state rules mean the court could not simply decline to hear the appeal — it would have to take some sort of action. And the federal ruling is currently in front of the U.S. Supreme Court, which has not yet decided whether it will hear the case.

Whatever happens, further political and legal fighting is all but certain.