Written by John L. Micek and Peter Hall, Pennsylvania Capital-Star
One week before Election Day, Pennsylvania’s highest court has ordered county election boards not to count mail-in ballots that are undated or are incorrectly dated, handing a partial victory to Republicans who argued that state election law called for dated envelopes.
In an order issued on Tuesday afternoon, the Pennsylvania Supreme Court ordered county election boards to “segregate and preserve any ballots contained in undated or incorrectly dated outer envelopes.”
A group of voters, backed by the state and national Republican parties filed a lawsuit late last month asking the high court to use its power to take the case without it first going through the lower courts.
They urged the court to immediately rule whether undated or incorrectly dated ballots should be counted because it could have an impact on the midterm elections. Undated ballots have been challenged in every election since 2020, when voters first had the option to cast a ballot by mail without a reason for not going to the polls in person.
The voters and parties argued the language of Act 77, which authorized expanded voting by mail, and a 2020 decision from the Supreme Court are clear, the Capital-Star previously reported.
“A majority of this Court has already held that the General Assembly said what it meant and meant what it said: the date requirement is mandatory, and any ballot that does not comply with it may not be counted in any election after the 2020 general election,” the filing reads.
In its ruling, the court said it was evenly divided on whether failing to count such ballots violates the federal Voting Rights Act. The ruling indicated that Chief Justice Debra Todd, joined by Justices Christine Donohoe and David Wecht would find a violation of federal law, while Justices Kevin Dougherty, Sallie Updyke Mundy, and Kevin Brobson would not find a violation of federal law.
Opinions were not immediately available.
Last month, the U.S. Supreme Court dismissed a decision by a federal appeals court ruling that the dating requirement was a violation of the Civil Rights Act’s materiality clause, which bars states from disenfranchising voters over paperwork errors that have no bearing on the voters’ qualifications to cast a ballot.
The U.S. Supreme Court vacated the appeals court decision because the underlying 2021 judicial race from Lehigh County had been decided. In that case, the winning candidate prevailed by five votes after undated mail-in ballots were counted.
Although the state Supreme Court ruled in 2020 that the date requirement was mandatory, it did not consider whether it was at odds with the Civil Rights Act. Two Commonwealth Court decisions this year ordering election officials to count undated ballots relied in part on the federal appeals court ruling that was thrown out.
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