Pennsylvania mail-in ballots that are not dated on the outside envelope by the voter should not be counted even if they arrive at a county election office on time, a three-judge appeals court panel ruled on Wednesday.
The 2-1 decision from the U.S. 3rd Circuit Court of Appeals strikes down a lower court ruling and sets up a potential Supreme Court battle over Pennsylvania’s mail-ballots that began in 2020, and will almost certainly affect how the swing state’s ballots are handled in the upcoming presidential election.
At issue is the materiality provision of the Civil Rights Act of 1964, which prohibits officials from denying anyone from voting because of an error or omission “on any record or paper relating to any application, registration, or other act requisite to voting,” unless it is material to the person’s qualification to vote.
“Because the date decision is irrelevant to whether a vote is received timely, the blink response is to believe a voter’s failure to date a return envelope should not cause his ballot to be disqualified,” Senior U.S. Circuit Judge Thomas Ambro wrote in the decision Wednesday. But the provision only applies when the state is determining who may vote, Ambro added, “and does not apply to rules, like the date requirement, that govern how a qualified voter must cast his ballot for it to be counted.”
Ambro, who was nominated by President Bill Clinton, noted that the date requirement “serves little apparent purpose,” but since the state’s Supreme Court ruled that dating of envelopes was mandatory, “undated or misdated ballots are invalid under state law and must be set aside.”
The question of whether ballots with a missing or incorrect date should be counted has been a factor in elections since Pennsylvania’s no-excuse absentee voting law took effect in 2020. Known as Act 77, the law made voting by mail a popular option that year, but there have been numerous challenges and disputes over how to consider ballots with return envelopes that are filled out incorrectly. The requirement of a date on the return envelope has caused particular confusion, and consternation, for voting rights groups and the courts.
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In response to a lawsuit filed by the Republican National Committee, in 2022 the Pennsylvania Supreme Court ruled that more than 10,000 mail-in ballots on which voters had not written the date on the outer envelope, or had written the wrong date, should be rejected.
In November, Erie-based U.S. District Judge Susan Paradise Baxter ruled that ballots with incorrect or missing states on the return envelope must be counted if they are received by Election Day.
Baxter found that rejecting ballots for the date requirement violates federal law against disenfranchising voters with requirements not material to their qualifications to vote. The RNC appealed that ruling — with 17 Republican-led states submitting an amicus brief in support of the RNC’s position — and the 3rd Circuit heard the case in February.
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Circuit Judge Patty Shwartz, who was nominated by President Barack Obama, wrote in a dissenting opinion Wednesday that the ruling was a reminder to voters to carefully review all instructions.
“If they do not, they risk having their otherwise valid votes discounted based on even the most inconsequential mistake,” Shwartz wrote. “One can only hope that election officials do not capitalize on the Majority’s narrow interpretation of the Materiality Provision by enacting unduly technical and immaterial post-registration paperwork requirements that could silence the voices of qualified voters.”
Newly appointed RNC Chairman Michael Whatley hailed the decision on Wednesday.
“This is a crucial victory for election integrity and voter confidence in the Keystone State and nationwide,” Whatley said in a statement. “Pennsylvanians deserve to feel confident in the security of their mail ballots, and this 3rd Circuit ruling roundly rejects unlawful left-wing attempts to count undated or incorrectly dated mail ballots. Republicans will continue to fight and win for election integrity in courts across the country ahead of the 2024 election.”
Ari Savitzky, senior staff attorney with the ACLU’s Voting Rights Project who argued the case before the 3rd Circuit said Wednesday the organization was considering all of its options.
“The thousands of voters affected here are eligible and registered,” Savitzky said in a statement. “They completed their mail ballots, signed the return envelope, and got their ballots in on time. Their votes should count. We strongly disagree with the panel majority’s conclusion that voters may be disenfranchised for a minor paperwork error like forgetting to write an irrelevant date on the return envelope of their mail ballot. We are considering all of our options at this time. And we will not stop fighting for voters.”
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