Pa. Supreme Court orders counties to set aside undated and wrongly dated mail ballots and not count them

Pennsylvania counties must segregate and not count mail ballots with missing or incorrect dates, the state Supreme Court said Tuesday in a ruling that could affect thousands of votes in November’s midterm elections.

The order came as the result of a 3-3 deadlock on the court over whether rejecting such ballots — which have been at the center of an ongoing political and legal fight between Democrats and Republicans — violates federal civil rights law.

Three of the justices said throwing out the ballots of otherwise qualified voters over a missing or incorrect date would improperly exclude legal votes. Three others disagreed. The seventh spot on the court remains vacant after the death of former Chief Justice Max Baer.

“We hereby direct that the Pennsylvania county boards of elections segregate and preserve any ballots contained in undated or incorrectly dated outer envelopes,” the court said in its brief order, which was not immediately accompanied by any opinions explaining the justices’ reasoning. The order said only that opinions would be released later.

Segregating ballots is a common election practice when votes are challenged or likely to be. By keeping ballots separated, they can be easily added to vote counts in the future — such as if federal litigation requires it in the weeks ahead.

Debates over which ballots should count — and what requirements and limitations are acceptable when it comes to voting — have been at the center of the country’s long civil rights journey.

The undated-ballot fight is also a political one.

Tuesday’s decision — which stemmed from a lawsuit brought by GOP voters and groups — delivered a significant victory to Republicans in a fight that began with the dramatic expansion of Pennsylvania mail voting in 2020. State law requires voters to handwrite a date on the outer envelope when returning mail ballots. Republican groups have argued in forums ranging from county courts to the U.S. Supreme Court that the state law requirement is clear: Undated ballots should be rejected.

It seemed for a while that that argument had prevailed, as counties last year rejected undated mail ballots and the Pennsylvania Department of State advised them to do so. Then things appeared to flip this year after federal and state lawsuits that resulted in undated ballots being counted in the primary.

But in the latest litigation, Republicans asked not only for the state of play to return to what it had been — they also pushed for ballots with the wrong dates to be rejected.

» READ MORE: Everything you need to know about Pa.’s November 2022 election

The court agreed with that request. That adds a new category of ballots that counties now have to reject, delivering a win for Republicans. But it was unclear Tuesday from the order alone what constitutes an “incorrectly dated” ballot. For example, would a ballot dated Election Day, but returned days beforehand, be considered wrongly dated?

Democrats are much more likely than Republicans to vote by mail, so anything that gets more ballots counted or rejected has clear partisan implications. In the midterm election, for example, Tuesday’s decision will mean that potentially several thousand votes for Lt. Gov. John Fetterman, the Democratic Senate nominee, and state Attorney General Josh Shapiro, the party’s nominee for governor, could be rejected.

Spokespeople for the Pennsylvania Department of State, which oversees elections, and for Gov. Tom Wolf said the Democratic governor’s administration was still reviewing the order and its implications.

“The order underscores the importance of the state’s consistent guidance that voters should carefully follow all instructions on the ballot and double-check before sending,” said Wolf spokesperson Beth Rementer.

The Department of State urged voters who are concerned they may have made a mistake to check with their county elections office or call the state voter hotline at 1-877-VOTES-PA.

Republican leaders, meanwhile, declared victory.

“We thank the Pennsylvania Supreme Court for re-confirming what we have said all along,” Pennsylvania House Speaker Bryan Cutler (R., Lancaster) and House Majority Leader Kerry Benninghoff (R., Centre) said in a statement. “Pennsylvania’s election law is undeniably clear that mail-in ballots and absentee ballots must be correctly dated to be valid.”

» READ MORE: What to do if you mess up your Pennsylvania mail ballot

The question of whether to count or reject ballots that are received on time without a date has become complicated over the last few years.

Each of the last four elections prompted battles over undated ballots, including a state Supreme Court decision in the 2020 general election, a threat to impeach Philadelphia elections officials for moving to count undated ballots in the 2021 primary, state and federal lawsuits over Lehigh County’s treatment of undated ballots in the 2021 general election, and state lawsuits in this year’s primary.

Democrats, using one set of court rulings, said counties should count undated ballots. Doing otherwise, they argue, would result in rejecting thousands of votes from qualified voters who simply made a mistake in filling out their ballots.

Republicans, using another set of court rulings, said state election law leaves no room for doubt — they must be rejected.

The state Supreme Court has ruled on the question before. In a split decision in 2020, three justices said undated ballots should be rejected; three justices said undated ballots should count; and the seventh justice said undated ballots should be rejected in the future but allowed in that year’s presidential election.

Because four justices had ruled that undated ballots should be thrown out, the Pennsylvania Department of State advised counties to reject undated ballots — and they did so last year. County and state courts continued to order undated ballots rejected.

But that was upended this year.

Shortly after the May primary, the U.S. Court of Appeals for the Third Circuit — ruling in a case centered on a 2021 judicial race in Lehigh County — found that the date on the ballot envelope was immaterial to determining whether it was lawfully cast and that rejecting ballots without them threatened to exclude votes from voters who made a simple mistake. Because ballots with the wrong date, such as a voter’s birth date, were routinely accepted, the court concluded, rejecting undated ballots was a violation of federal civil rights law.

In a series of legal fights in state court that followed, Commonwealth Court President Judge Renée Cohn Jubelirer issued similar rulings this summer. She said undated mail ballots should be counted under both state and federal law, saying in part that the state Supreme Court in 2020 hadn’t fully known or considered the fact that counties were accepting ballots with any date on them.

Republicans took the fight to the U.S. Supreme Court, which last month vacated the Third Circuit’s ruling, once again injecting uncertainty into the undated-ballot issue weeks before Election Day.

In the wake of the U.S. Supreme Court’s order, Democrats had argued that nothing has changed, and Cohn Jubelirer’s rulings should still require counties to count undated ballots. The Department of State said it expected counties to do so.

But Republicans disagreed — and saw an opportunity. Without the federal appeals court’s ruling to help bolster Democrats’ argument, they returned to the state courts. The Republican groups, including the state and national party, filed what’s known as a King’s Bench petition with the Pennsylvania Supreme Court, asking it to immediately take the case.

And once again the question of what to do with undated ballots divided the state Supreme Court.

Chief Justices Debra Todd and Justices Christine Donohue and David Wecht, all elected as Democrats, said they would have found that the rejection of undated and wrongly dated ballots violates federal law. Justices Kevin Dougherty, a Democrat, and Sallie Updyke Mundy and Kevin Brobson, Republicans, disagreed.