Republicans want the Pa. Supreme Court to stop undated mail ballots from being counted

Republicans are taking the fight over undated Pennsylvania mail ballots straight to the state’s high court, and they’re not waiting until Election Day to do it.

A coalition of GOP groups, including the Republican National Committee and the state party, filed a lawsuit late Sunday night asking the Pennsylvania Supreme Court to block undated mail ballots from being counted.

State law requires voters to handwrite a date on the outer envelope when returning mail ballots. But the question of whether they can be counted without a date or must be thrown out has been a persistent source of political and legal conflict since the 2020 election. A series of challenges in state and federal courts have led to a murky legal landscape in which Democrats say undated ballots must be counted — and Republicans say they must be rejected.

The new lawsuit, if the state’s high court chooses to hear it, could provide clarity as Pennsylvania heads into a high-profile election that includes races for U.S. Senate, governor, and more.

“The time for the Court to act is now. The validity of undated absentee and mail-in ballots already led to one costly and unnecessary election challenge earlier this year,” the lawsuit says, referring to a primary election fight between Republican candidates for U.S. Senate.

The legal status of undated mail ballots was more widely accepted about a week ago: Republicans, however grudgingly, generally agreed that they would count under the case law at the time.

That’s because a federal appeals court ruled that the practice of rejecting undated mail ballots was a violation of federal voting rights law. Counties accept any date on the envelopes — such as a voter’s birth date — so rejecting undated ballots is an unfair use of a technicality to throw out votes, the U.S. Court of Appeals for the Third Circuit said.

Combined with some state court opinions, it was generally understood that undated ballots should be counted, though Republicans continued to argue that state law clearly requires a date.

The U.S. Supreme Court gave them a new opening last week.

» READ MORE: Federal appeals court says undated Pa. mail ballots should be counted, a decision that breaks with state courts and could have immediate impact

That court last Tuesday vacated the Third Circuit opinion, voiding it on procedural grounds and once again unsettling the question of whether undated ballots count.

Republicans rushed to say the ballots should again be rejected under state law, citing a 2020 Pennsylvania Supreme Court decision and subsequent litigation. Democrats argued that a pair of Commonwealth Court rulings this year require the ballots to be counted, pointing especially to a ruling in August that said state and federal law protect the counting of undated ballots.

Both sides’ legal arguments have weaknesses.

The 2020 state Supreme Court decision was a fractured one in which four of the seven justices said state law does require undated ballots to be rejected, but one of those four justices said they should nevertheless be counted just in the 2020 election. That means there isn’t a single majority opinion explicitly saying undated ballots must be rejected.

The Commonwealth Court ruling in August said the 2020 decision wasn’t actually precedent because of how it was decided. The facts are also different now, the judge ruled in August. But the Commonwealth Court opinion is also not precedent, leaving both sides disagreeing not only over the interpretation of the law and of court opinions, but also how much weight to give various rulings.

» READ MORE: Fights over Pa. election rules that seemed settled after 2020 have now come roaring back

It’s in that murky legal landscape that the Republican groups filed what’s known as a King’s Bench petition, asking the Pennsylvania Supreme Court to take the unusual step of considering a legal question without going through the normal court process.

In this instance, the Republicans argue that the question of undated ballots is a pressing and immediate matter that, if left unaddressed, could lead to ballots being counted that should be rejected. And whatever the ultimate decision might be, they say, counties may treat undated ballots differently.

“Any counting of ballots that the General Assembly has declared invalid — and the lack of statewide uniformity in the treatment of undated or incorrectly dated ballots — are eroding public trust and confidence in the integrity of Pennsylvania’s elections at a vital moment in the Nation’s and the Commonwealth’s history,” reads the Republican lawsuit, which names as defendants the acting secretary of state and the 67 county boards of elections.

Republicans also pushed back against Leigh Chapman, the acting secretary of state, for telling counties to count undated mail ballots.

Chapman, the state’s chief elections official as the head of the Pennsylvania Department of State, has told counties the U.S. Supreme Court’s order doesn’t change the need to count undated ballots. The department’s official guidance to them remains the same: count the ballots.

“It’s the same guidance, so it’s the status quo. So the counties are not to do anything differently, they’re to count timely received ballots from eligible voters that lack a handwritten date,” Chapman said in an interview Friday.

Because of that guidance and the potential for uneven policies across the state, Republicans asked the state Supreme Court for an immediate order that undated ballots be segregated so that they can be added to or removed from the count later depending on how the court rules.