Undated mail ballots won’t be counted in next week’s election, Pa. Supreme Court rules

The Pennsylvania Supreme Court doubled down Friday on its previous rulings that undated mail ballots should not be counted in next week’s election, staying an order from a lower court that had injected uncertainty into the status of thousands of votes that will now be rejected.

In a unanimous ruling, the justices blocked a Commonwealth Court decision this week that failing to include them in statewide vote tallies violated the rights guaranteed to voters under the state constitution.

While the Supreme Court has yet to take up the merits of that claim, in its order Friday, it reiterated guidance it issued earlier this month that it would “neither impose nor countenance substantial alterations to existing laws and procedures during the pendency of an ongoing election.”

And in a biting concurrence, Justice Kevin Dougherty, a Democrat, chastised Commonwealth Court for what he saw as defiance.

“We said those carefully chosen words only weeks ago. Yet they apparently were not heard in the Commonwealth Court, the very court where the bulk of election litigation unfolds,” Dougherty wrote. “We said what we meant and meant what we said.”

That decision ends — for now — what has become a yearslong battle over some of Pennsylvania’s most hotly contested votes. Each year, tens of thousands of voters forget to date their mail ballots, as required by state law, or write an incorrect date on their ballot’s envelope.

While undated ballots represent a small fraction of votes cast in Pennsylvania, they still have the potential to affect close races. And parties will be vying for every vote next week because Pennsylvania could decide the fate of races for the White House and the U.S. Senate.

Republicans call the dating requirement common sense and argue that overturning it would subvert the will of the General Assembly.

But voting rights groups and Democrats, who are more likely to cast ballots by mail, have argued they should count anyway since elections administrators don’t use those handwritten dates to determine whether a ballot was received on time. Rejecting them, they say, leads to thousands of otherwise eligible voters being disenfranchised each year.

Though the state Supreme Court had been asked to take up the issue last month, it rejected the case, saying it was too close to the election to consider substantially changing the rules.

But Commonwealth Court, with its ruling Wednesday, threw that dynamic into confusion.

On its face, its decision that undated ballots should count applied only to an August special election in Philadelphia. But the logic the judges used — that failing to count them amounted to a constitutional violation — left county election officials unsure how to proceed as they prepared for next week’s election.

“Regrettably,” Dougherty wrote in his statement Friday, the run-up to the vote has seen a number of cases from challengers seeking to alter election rules. “Even more unfortunate,” he added, “lower courts repeatedly have taken the bait.”

Justice Christine Donohue, a Democrat, agreed with her colleagues’ ruling to stay the Commonwealth Court decision, but did not join in Dougherty’s criticism of the lower courts, noting that at some point the Supreme Court would have to take up the case.

“There is an election in this Commonwealth approximately every six months,” she noted. “Undoubtedly, the appellate resolution of cases filed after the completion of one election may bump up against the next election. "

Republicans celebrated the ruling Friday as a victory and an endorsement of the state’s ballot dating requirement.

“Democrats have repeatedly tried to eliminate this important ballot safeguard, and we have stopped them each time,” Republican National Committee chair Michael Whatley said in a statement.

Neil Makhija, a Democrat who chairs the Montgomery County Board of Elections, said that while Friday’s order meant his county won’t be including undated ballots in its final tallies, he intended to still keep a separate count of them.

“We will continue to … let voters know exactly how many voters could be disenfranchised as a consequence of what we believe remains an unconstitutional provision of the election code,” he said.