A coalition of grassroots organizations has filed a lawsuit against Secretary of the Commonwealth Al Schmidt and election officials in Pennsylvania’s two biggest counties, seeking an end to the practice of disqualifying mail-in ballots without a voter’s handwritten date on the external envelope.
The U.S. 3rd Circuit Court of Appeals ruled in March that ballots without the external date should not be counted, even if received by the Election Day deadline. The three-judge panel struck down a lower court ruling which found that rejecting ballots for the date requirement violates federal law against disenfranchising voters.
“Pennsylvania should be making it easier to vote, not more difficult,” Mike Lee, executive director of the ACLU of Pennsylvania said in a statement. Attorneys from the ACLU of PA are representing the organizations in the suit, along with the Public Interest Law Center and pro bono co-counsel from Arnold & Porter.
“This arbitrary handwritten date requirement has already disenfranchised tens of thousands of voters in the commonwealth,” Lee added. “With such high stakes in the 2024 election, Pennsylvania counties must do everything they can to ensure that every vote is counted.”
The case is separate from a federal lawsuit challenging the date requirement filed by the NAACP, which claimed that the requirement violates federal civil rights law, the ACLU said.
At issue in the NAACP case 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.
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Senior U.S. Circuit Judge Thomas Ambro wrote in the March 3rd Circuit Court decision that the date requirement “serves little apparent purpose,” but since the state’s Supreme Court ruled it was required, “undated or misdated ballots are invalid under state law and must be set aside.”
The question of whether mail-in ballots with a missing or incorrect date on the outside envelope should be counted has been a factor in elections since Act 77, Pennsylvania’s no-excuse absentee voting law, took effect in 2020. The requirement of a date on the return envelope has been a sticking point for voting rights groups and the courts, and Pennsylvania redesigned its mail ballots in November 2023, hoping to reduce confusion with clearer directions included.
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.
Tuesday’s lawsuit, filed in Commonwealth Court, includes affidavits from several voters who were dismayed to find their votes had been rejected in recent elections because of the external ballot signature requirement. They include Mary Stout, a Berks County voter who mailed in her ballot for the April primary, only to be informed it had been rejected for not having the handwritten date on the outer envelope. The notice informed her she would have to cast her vote in person, which Stout said she was unable to do because of mobility issues. “As a result, my vote was not counted,” Stout said.
“Our state constitution is clear: every vote matters in Pennsylvania,” Ben Geffen, senior attorney at the Public Interest Law Center said in a statement. “Procedures that needlessly block even a single eligible voter from exercising that most fundamental right are suspect. This pointless handwritten date requirement — which every year causes thousands of eligible voters’ ballots to be rejected for harmless clerical errors — cannot continue in Pennsylvania.”
The lawsuit names Schmidt, along with the Philadelphia County and Allegheny County boards of elections. The petitioners, which include Black Political Empowerment Project, POWER Interfaith, Make the Road Pennsylvania, OnePA Activists United, New PA Project Education Fund, Casa San José, Pittsburgh United, League of Women Voters of Pennsylvania, and Common Cause Pennsylvania want the court to declare the handwritten date rule unconstitutional. They seek an injunction against enforcing the rule requiring mail ballots without the handwritten date to be rejected.
“Unfortunately, disqualifying voters’ mail ballots over a trivial paperwork error on their return envelope discourages voters from participating in the democratic process,” Kadida Kenner, chief executive officer of the New PA Project Education Fund, said in a statement. “We want Pennsylvanians voting twice a year — every year — not disenfranchised by this unnecessary rule.”
The Philadelphia elections department declined to comment.
Ellen Lyon, deputy director of communications for the Department of State, said Tuesday the department was aware of the lawsuit and was still reviewing the petition, and reiterated both the DOS position and its guidance on mail-in ballots.
“In the years of litigation over this issue, it has become irrefutably clear that the handwritten date serves no function in the administration of Pennsylvania’s election,” Lyon wrote in an email to the Capital-Star. “As a result, the Department has consistently argued in court that voters should not be disenfranchised for failing to write or incorrectly writing a date that serves no function.”
“However, given existing court rulings and pending any further legal developments, our guidance on undated and incorrectly dated ballots remains unchanged: All voters must sign and date their declaration envelope in order to have their vote counted,” she added.
Abigail Gardner, a spokesperson for Allegheny County said the county is aware of the litigation and like other counties, is required to follow the Department of State’s guidance to follow the court ruling that mail-in ballots must be dated by the voter.
“Allegheny County is committed to ensuring voters have the information they need to properly complete their ballots and has consistently had a robust cure process so that voters can correct inadvertent errors such as having an incomplete date or signature on the ballot return envelope,” Gardner said in a statement.
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In the 2024 primary, she added, the Allegheny Elections division was able to help 62% of voters who submitted a mail-in ballot with an error on the envelope or that omitted the “secrecy” envelope to correct their mistakes and resubmit their ballots.
“Allegheny County’s Administration takes the rights of voters seriously and continues its efforts to assure that votes cast by its registered voters will be counted,” Gardner said.
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