This article was originally published By Votea nonprofit news organization focused on local election administration and voting access.
by Carter Walker, Votebeat
A Pennsylvania appeals court ruled Friday that disregarding a mail-in ballot because the return envelope was improperly stamped violates voter rights under the state constitution.
Republicans have said they will immediately appeal the ruling to the Pennsylvania Supreme Court. But if the decision stands, it could affect thousands of votes and the outcome of close races.
The five-judge panel of the Commonwealth Court split the case by a vote of 4-1.
“Refusing to count undated or misdated but timely mail-in ballots cast by eligible voters because of senseless and irrelevant errors in the documents violates the fundamental right to vote enshrined in the Free and Equal Elections Clause.” Judge Ellen Ceisler wrote on behalf of the majority, citing a provision in the state constitution.
The case, brought by a coalition of civil rights groups represented by the American Civil Liberties Union of Pennsylvania, is the latest of several challenges to the dating requirement since the state enacted its mail-in voting law, Act 77, in 2020.
Bill No. 77 requires voters to sign and date the outer return envelope of their mailed ballot and return the ballot in a security envelope in order for the vote to be counted.
Federal judges have left there and back over whether enforcing the requirement violated federal election law. The current case is the first to directly challenge the requirement under the state constitution.
Plaintiffs’ lawyers praised the ruling. “This decision strengthens voting rights in Pennsylvania,” he said Brent Landauexecutive director of the Public Interest Law Center, one of the groups that sued to challenge the requirement. “Mail-in ballots will no longer be rejected because of a meaningless date requirement that serves no purpose.”
The lawsuit names the state’s two largest counties and the Pennsylvania Department of State as defendants. The department declined to defend the requirement in court and called the ruling a “victory.”
The Pennsylvania GOP and Republican National Committee intervened in the case to defend the requirement. In a statement: Claire ZunkA Republican National Committee spokesman said the decision was “an example of judicial activism at its worst” and that the RNC would appeal the ruling “immediately.”
“Courts should not undermine confidence in elections and their integrity by invalidating reasonable election laws passed by the people’s representatives,” she said.
Adam BoninA Philadelphia-based Democratic Party elections lawyer who was not involved in the case but has been involved in other lawsuits challenging the backdating requirement said the ruling should apply statewide, although only the State Department and Philadelphia and Allegheny counties were sued.
During oral arguments earlier this monthACLU attorneys argued that if the state could not show it had a legitimate interest in complying with the date requirement, then the Free and Equal Elections Clause of the state constitution would prevent officials from using the rule to throw out votes.
In the ruling, Ceisler emphasized findings from previous cases that the date “is not used to determine the timeliness of voting, a voter’s qualifications/eligibility to vote, or fraud.”
“Accordingly, the dating provisions serve no compelling government interest,” she wrote.
The state and national Republican parties argued that the date could be helpful in detecting fraud or could serve as a backup option to determine when a ballot was received if electronic systems failed. They also argued that if the justices found the dating requirement invalid, the entire Act 77 would have to be invalidated, given the way the law was written.
However, the majority disagreed, saying the plaintiffs sought only “a declaration that enforcing the dating laws in a manner that excludes undated and misdated votes” is unconstitutional.
The Pennsylvania Department of State said in a statement that the decision was a victory for voting rights.
“A number of court cases have already confirmed that post-dating a mailed ballot envelope, when election officials can already confirm that it was sent and received within a legal voting window, serves no purpose in election administration,” the statement said. “This ruling makes clear that a voter’s minor mistake of forgetting to post-date or misdating a ballot envelope cannot be grounds for disenfranchisement. Our Administration will always uphold the right of Pennsylvanians to vote and is pleased with today’s ruling.”
Governor Josh Shapirodemocrat, he tweeted that the court “made the right decision.”
The judge who expressed his dissent, Patricia McCullough argued that the dating requirement “falls squarely” within the legislature’s authority to set voting rules and wrote that the majority ignored “more than a century” of Supreme Court precedent on the state constitution’s liberty and equality clause.
The ruling could have wide-ranging implications in November.
During the April primary, counties rejected about 8,500 ballots, or 1.22% of those returned, because they failed to meet one or more of those standards, according to a Pennsylvania Department of State analysis of data. More than 4,400 of those were rejected because of dating issues.
However, these numbers are expected to be higher in the fall as more voters take part in the presidential election and decide to cast their ballots by mail.
“If there was any real justification, we would be in a different situation, but there isn’t,” Bonin said. “That’s what the framers of the Pennsylvania Constitution had in mind when they wrote the Free and Equal Suffrage clause.”
Carter Walker is a Votebeat reporter in partnership with Spotlight PA. Contact Carter at cwalker@votebeat.org.
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