Several lawsuits could change how votes are counted in Pennsylvania in November. Here’s what you need to know

With Election Day looming, legal battles shaping how ballots are cast and counted in Pennsylvania show no sign of letting up.

Lawsuits over the state’s voting laws have persisted virtually uninterrupted since the 2020 election. And both parties are preparing for a potential onslaught of even more litigation post-Nov. 5.

The lawsuits before state and federal courts — mainly on issues related to mail ballots — may concern just a small fraction of the state’s nearly 9 million registered voters. But how the courts rule could have an immense impact, given the razor-thin margins expected to decide the presidential race in Pennsylvania, a crucial swing state that could determine who wins the White House.

Here is the status of cases that could affect Pennsylvania voters before November. We’ll keep updating this list of legal battles affecting Pennsylvania voters as new lawsuits are filed, and as these issues are resolved.

Thousands of mail ballots are thrown out each election because voters fail to correctly write the date on the ballot’s outer envelope, as required by state law. Some voters forget entirely, while others absentmindedly write wrong dates such as their date of birth. Should small oversights like a missing or incorrect date result in otherwise eligible voters having their ballots rejected?

Broadly, Democrats and left-leaning groups argue that the dating requirement needlessly disenfranchises thousands of voters each year. Elections administrators don’t use the handwritten dates on the envelopes to determine whether a ballot was submitted on time. They have their own electronic system for tracking when a ballot was received. So, essentially, those challenging the dating requirement say it serves no practical purpose.

Republicans, however, insist courts should respect the law as written. They call the date requirement a commonsense protection lawmakers specifically envisioned as a means to help detect fraud and to be used as a backup for determining whether a ballot was submitted on time if administrators’ electronic systems fail.

No voting issue has been more heavily litigated than the ballot dating requirement since Pennsylvania created no-excuse mail voting in 2019. Since then, a series of lawsuits — and conflicting rulings from state and federal judges — have resulted in a whipsaw back-and-forth where undated ballots are counted one election, then excluded the next. Some counties, like Montgomery County, have broadly interpreted the law to allow them to accept more incorrectly dated ballots — like accepting ballots that use the international method of day before month or ballots that exclude the day but include the month and year.

Heading into November, prevailing rulings from both state and federal courts agree: Undated ballots should not be counted. The Pennsylvania Supreme Court reiterated that status quo Oct. 5, when it refused to take up an emergency petition brought by a coalition of voting rights groups seeking reconsideration of the issue.

“This court will neither impose nor countenance substantial alterations to existing laws and procedures during the pendency of an ongoing election,” the justices wrote in an order.

There is one remaining state court case on the issue. The Philadelphia Court of Common Pleas ruled that the county board of elections violated voters’ rights by rejecting their undated or misdated ballots. That case was appealed to the Commonwealth Court.

Meanwhile, voting groups are seeking similar relief from the federal courts. There, they’ve argued that throwing out votes because of a missing date violates what’s known as the “materiality provision” of the federal Civil Rights Act, which broadly states voters can’t be denied the right to vote because of an error that’s immaterial to determining whether they’re legally eligible to do so. They’ve petitioned the U.S. Supreme Court to consider overturning a March ruling from a lower court that disagreed.

They’re also pursuing separate arguments before a U.S. District Court, contending that the rejection of undated ballots disproportionately affects lower-income and nonwhite communities. But election lawyers on both sides of the political divide say it’s unlikely there will be a significant ruling in either of the federal cases before Election Day.

Election officials rejected more than 10,000 ballots in the 2022 general election due to missing or incorrect dates. While that number is only a small slice of Pennsylvania’s electorate, it could make a big difference in November, where the margins of victory in the hotly contested race for president could come down to a couple thousand votes.

If a ruling were to emerge from any of the pending litigation that would require the counting of undated mail ballots, it could provide a boost to Democrats who, in recent elections, have tended to vote by mail more often than Republicans.

In order to be counted, mail ballots in Pennsylvania must be signed, dated, and placed within a secrecy envelope provided by county election offices. But voters do sometimes make mistakes.

In some counties, like Philadelphia, election offices proactively contact voters who have forgotten any of these steps, offering them a chance to correct their ballot or cast a provisional vote (a vote that is tallied toward the end of the counting process if election officials determine it meets the qualifications). Other counties don’t reach out to voters but mark the ballot as invalid in the state’s online tracking system. This gives voters who spot the issue on their own or with the help of third-party groups a chance to correct the mistakes. But some counties do nothing at all — leaving voters in the dark about whether their ballot will count.

If a voter makes a mistake on a ballot, should they be notified and allowed to fix it to ensure their vote is counted?

State law is relatively silent on whether voters should be allowed to correct their ballot, a concept elections administrators and attorneys refer to as “notice and cure.” State courts have held that counties are not obligated to provide voters with the opportunity, but have also not prohibited them from doing so.

Voting rights advocates broadly argue that every county should give voters the chance to prevent their otherwise legally cast vote from being tossed out because of a simple paperwork error.

Republicans contend the practice is unlawful, because the 2019 law that created mail voting in Pennsylvania does not explicitly say counties can notify voters of errors and allow them to fix them. They’ve argued that the patchwork of policies in Pennsylvania’s 67 counties is confusing to voters. Some counties have resisted allowing voters to fix their ballot because they interpret state law to mean that once a ballot is submitted, it cannot be reopened until Election Day.

Advocates had sought to address the issue in three cases — one out of Washington County, another in Butler County, and another advocates had hoped to have heard at the state Supreme Court.

In Washington County, several voting rights groups have argued the local board of elections violated the due process rights of some voters by refusing to tell them whether their ballots would be thrown out due to mistakes. The county also hadn’t marked ballots in danger of being rejected in the state tracking system, allowing voters to find out for themselves using the online ballot tracking system.

In August, a lower court ordered the Washington County board to start marking ballots in danger of being rejected as “invalid” in that system — a ruling later affirmed by the Pennsylvania Commonwealth Court. The Republican National Committee is now appealing that decision to the state Supreme Court.

The Butler County case focuses on whether election officials should count provisional ballots cast by voters whose mail ballots were rejected. The Pennsylvania Commonwealth Court ruled in September that those ballots should be counted. The RNC appealed the case to the state Supreme Court.

On Saturday the state Supreme Court denied a request from the RNC to take up a broader case and rule on whether any “notice and cure” policy is legal. They had asked the justices to bar counties from reaching out to voters — either directly or by updating the state tracking system — whose ballots are in danger of being rejected due to mistakes.

But the court opted not to take the case because it was filed too late.

“King’s Bench jurisdiction will not be exercised where, as here, the alleged need for timely intervention is created by Petitioners’ own failure to proceed expeditiously,” the court order said.

In April’s primary election, just over 1% of mail ballots (7,918) were rejected statewide because of date, signature, or envelope issues. If counties are prohibited from helping voters notice and resolve those errors ahead of the election, that fraction could increase — leading to the rejection of several thousand ballots.

Similarly, if counties are required to give some level of notice, the number of ballots rejected for those issues would likely decrease. Either way, it could prove significant in the presidential race, which could swing on just one or two percentage points.

The RNC is suing the Montgomery County Board of Elections, arguing the county broke state law by sending its mail ballots before it had finished testing all machines that would be used to administer the 2024 election. They’re seeking a court order that would bar the county from mailing any more ballots until those tests are complete and for all ballots sent prior to the completion of the testing to be hand counted. An RNC victory could significantly slow down ballot counting in one of Pennsylvania’s largest counties.

The Department of State called the lawsuit frivolous, arguing that the RNC misconstrued the election code and that Montgomery County completed all required testing before it sent out any ballots. The case remains pending before a county Common Pleas Court judge.

The ACLU sued Luzerne County in October saying the county manager exceeded her authority by announcing the county would not offer ballot drop boxes this year. That decision, the ACLU argues, is up to the county election board. The case is pending before a county Common Pleas Court judge.