Less than a week before the presidential election, a Pennsylvania court again ruled that mailed ballots returned with missing or incorrect dates must be counted.
Wednesday’s decision stems from a lawsuit filed by two Philadelphia voters whose absentee ballots in the Sept. 17 special election for a pair of House seats were disqualified even though they were returned on time. They were among 69 ballots that the Philadelphia Board of Elections refused to count because voters did not follow instructions to write the date on the outer envelopes of the ballots before returning them.
A Philadelphia judge ruled in favor of voters represented by the American Civil Liberties Union of Pennsylvania and the Public Interest Law Center. The Philadelphia Board of Elections filed an appeal, joined by the Republican National Committee and the Pennsylvania Republican Party.
In a 3-2 decision, a Commonwealth Court panel ruled that the requirement to date the envelopes is unconstitutional because it denies the right to vote for minor and inconsequential errors and does not serve any significant governmental purpose.
“Pennsylvania voters cannot be disenfranchised for frivolous reasons,” said Stephen Loney, senior supervising attorney for the ACLU of Pennsylvania. “The dates written on the return envelopes are completely irrelevant and everyone agrees that these ballots came from eligible voters and were received in a timely manner. Disqualifying a voter for minor errors is a violation of the state constitution, which lies with the voter.”
GOP lawyers did not return calls seeking comment on Wednesday.
This decision largely follows the August 30 Commonwealth Court ruling in a similar postal voting case that was later announced thrown out by the state Supreme Court on procedural grounds. The court found that election officials in all 67 Pennsylvania counties should have been allowed to vote.
It’s unclear how the ruling might affect how ballots are handled outside of Philadelphia. The Philadelphia Board of Elections and the Republican parties have the right to appeal to the state Supreme Court.
“We applaud the Commonwealth Court for its ruling recognizing voters’ rights and hope that every county will follow this ruling when processing absentee ballots next month,” said Mimi McKenzie, legal director of the Public Interest Law Center. “Because today’s decision may not be the last word on this issue, we continue to recommend that voters date their return envelope, take every opportunity to correct errors, or vote provisionally on Election Day if they have made an error in the date of the envelope.”
The Supreme Court recently stated this deferring action on questions about absentee ballotsclaiming that rulings changing the law could cause confusion in connection with the upcoming elections. In dissenting opinions, Commonwealth Court Justices Matthew Wolf and Patricia McCullough said Wednesday that they oppose deciding a special case involving Philadelphia’s elections now because it runs counter to the Supreme Court’s admonition that such decisions should be made after the election.
In Wednesday’s opinion for the majority of the Commonwealth Court, Justice Ellen Ceisler said there were no such concerns. Ceisler noted that the court was only asked to rule on the constitutionality of 69 ballots in the special election. “We have not been asked to make any changes in view of the upcoming 2024 general election.” Ceisler said.
Since no-excuse absentee voting became available in 2020, courts have been asked to address the issue of ballot dating in every election.
Ceisler said that since the state Supreme Court struck down an earlier decision finding the dating requirement unconstitutional, the court was essentially “back to square one” on the issue of first impression. She concluded, as the court did in its August ruling, that various courts have determined that handwriting the date makes no sense and therefore disqualifying undated ballots deprives voters of a fundamental right and is unconstitutional.
“We cannot tolerate any election regulation law, whether declared mandatory or not, whose practical effect in its application is an unacceptable infringement of the fundamental right of some people to vote,” Ceisler said.
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