A new ruling on undated ballots in Pennsylvania has injected confusion and uncertainty into the final days of 2024 campaign

Pennsylvania’s Commonwealth Court injected new uncertainty into the long-running debate over undated mail ballots Wednesday with a ruling that prompted predictions of chaos from some of the court’s judges and left the fate of thousands of ballots once again in question a week before Election Day.

In a 3-2 decision, the court’s judges ruled that failure to count mail ballots that are missing dates or have the wrong date on their outer envelope risks violating the rights of the voters who submitted them.

On its face, the decision applied only to roughly six dozen ballots cast in a special election in Philadelphia last month. But the court’s reasoning — that excluding them from official tallies amounted to a violation of rights guaranteed under the state constitution — left elections officials uncertain of the decision’s implications for Tuesday’s vote.

Complicating matters further, Wednesday’s ruling appeared to run contrary to a Pennsylvania Supreme Court decision just weeks earlier that rebuffed requests to settle the question of whether undated ballots should be included in the vote count before Election Day.

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

No matter where they stood on the issue, county elections administrators had thought that the Supreme Court had made the rules for the forthcoming election clear: Undated ballots would not be counted.

But Wednesday’s decision from Commonwealth Court threw their status into confusion once again.

“It’s a never-ending saga,” said Thad Hall, election director for Mercer County. “At this point, we’ve been playing this game for four years.”

The question of how to handle dates on mail ballots has been one of the most hotly contested legal and political fights each election cycle since the creation of no-excuse mail voting in Pennsylvania in 2019.

State law requires voters to write the date on their ballot’s outer envelope. But tens of thousands of voters each election either forget to do so or write an incorrect date, such as their date of birth.

But those handwritten dates are not used by elections officials to determine whether a ballot was submitted on time. And as a result, battles have erupted across the state on whether a missing or wrong date should disqualify otherwise eligible voters.

Over the last four years, a whipsaw series of back-and-forth decisions from state and federal courts has resulted in their inclusion in tallies for one election only to be excluded in the next.

The number of votes discarded each cycle in which they have not been counted is relatively small — tens of thousands each year — compared to the state’s broader electorate. But in 2024, where the presidential race could be decided in Pennsylvania on razor-thin margins, those votes could prove determinative in who emerges the victor.

Democrats overwhelmingly favor mail voting, and the party has consistently fought to have undated mail ballots included. In recent cases, they have argued that disqualifying them unfairly disenfranchises otherwise eligible voters.

Republicans, by contrast, maintain the laws as written are clear: A ballot missing the handwritten date should not count.

Commonwealth Court ruled against that GOP argument in a separate case earlier this summer — only for the Supreme Court to overturn that decision on a procedural issue.

In issuing their decision Wednesday, the Commonwealth Court judges relied on similar reasoning to justify their order that undated ballots should count.

“Enforcement of the dating provisions has resulted in the arbitrary and baseless rejection of thousands of timely ballots, resulting in disenfranchisement in violation of the free and equal elections clause,” Judge Ellen Ceisler, a Democrat, wrote for the court’s majority.

She preemptively responded to criticism that the decision might change the rules too close to the November election by stressing the case before the court involved only the special election in Philadelphia last month.

Still, two of her colleagues on the court — Judges Matthew S. Wolf, a Democrat, and Patricia McCullough, a Republican — dissented, arguing that ignoring the ruling’s wider implications for Tuesday’s vote amounted to willful blindness.

“The majority opinion will risk causing confusion on the eve of the 2024 General Election,” Wolf warned.

McCullough panned the decision as rejection of previous Supreme Court guidance.

“I bid county boards of elections and Pennsylvania voters the best of luck in trying to decipher what they are supposed to do now,” she wrote. “The Election Code’s rules in this regard are clear. We should have left them that way.”

Amid that back-and-forth, voting rights advocates rushed to declare victory.

“This decision upholds the fundamental right to vote of Pennsylvanians,” said Ari Savitzky, senior staff attorney with the ACLU. “Refusing to count someone’s vote because of a meaningless paperwork mistake is contrary to common sense and basic American values.”

Elections administrators, meanwhile, expressed uncertainty about what to do now.

The Pennsylvania Department of State urged counties to segregate undated ballots for now and consult with their lawyers on whether to count them in light of any ongoing litigation.

“The Department is pleased with the result, which won’t interfere with the upcoming election and will only serve to enfranchise voters who would have their votes thrown out for meaningless mistakes,” a spokesperson said.

Neil Makhija, chair of the Montgomery County election board, said he was hopeful the ruling would allow his county to include those ballots in their tallies.

Officials in Philadelphia had not yet made a determination either as to how the ruling would affect their counting of ballots, City Commissioner Lisa Deeley said. She has long insisted that the state’s dating requirement is meaningless and should be done away with.

“I’m cautiously optimistic,” she said, but added: “As we’ve seen in the past, there’s a good chance that this is just the beginning of another sprawled-out battle.”

As of late Wednesday, the Pennsylvania Supreme Court had not indicated whether or when it might weigh in, leaving some, like officials in Chester County, to simply throw up their hands and wait.

“Any determination by Chester County,” said county spokesperson Becky Brain, “will be based on what is legal on Election Day.”

Read the majority opinion:

Read Judge Matthew S. Wolf’s dissent:

Read Judge Patricia McCullough’s dissent: