Rejecting absentee ballots simply because voters failed to enter the date violates the Pennsylvania Constitution, a lawyer for a group of organizations promoting the idea of voting argued in the Court of Common Pleas on Thursday.
The lawsuit, filed by nine voting access groups led by the American Civil Liberties Union of Pennsylvania, challenges parts of the state’s mail-in voting law and could play a key role in November’s presidential election and hundreds of lower-office races.
Since state lawmakers passed Assembly Bill 77 in 2019, which allowed voters to cast absentee ballots without providing a reason, tens of thousands of mail-in ballots have been rejected because the envelopes did not contain a handwritten date, which is a legal requirement.
The lawsuit, now before the Commonwealth Court, is the latest in a series of cases interpreting absentee voting law and its interplay with federal election laws. But it is the first time the date requirement has been challenged as a violation of the Fair and Equal Elections Clause of the state Constitution.
ACLU of Pennsylvania attorney Stephen Loney told the court that rejecting ballots returned before the end of Election Day because they were missing or had an incorrect date violated the most crucial fundamental right of Pennsylvanians.
The requirement is “so singular in its absurdity” that there is no reason to enforce it after it has passed the judicial review process that courts exploit to determine whether a restriction on rights is constitutional.
He added: “A number of courts have ultimately rejected all arguments made about the rule’s alleged purposes. It serves no purpose in election administration.”
The state and national Democratic parties, as well as Secretary of the Commonwealth Al Schmidt, sided with the voting access groups. The state Republican Party, the Republican National Committee and Westmoreland County Election Commissioner Doug Chew joined the case to defend the date requirement.
Previous challenges to the law have shown that county election officials do not refer to the dates voters enter on their ballots to determine whether the vote is timely, said Michael Fischer, Schmidt’s attorney. Instead, ballots are stamped or otherwise recorded upon arrival at the elections office, and any that arrive after 8 p.m. on Election Day are not accepted.
Even in a case where a woman signed and dated an absentee ballot for her deceased mother, the only relevant date was that it was after the mother’s death, which alerted officials to the attempted fraud. An election official testified that the ballot would have been invalidated regardless of the attempted fraud because it was returned so long after the mother’s death, Loney said.
The requirement to date the return envelope is a holdover from an earlier version of the election code, Loney said, when postmarks and handwritten dates were used to determine whether a mail-in ballot was cast on time. The requirement to date ballots remained in the code after the focus shifted to whether the ballot was received by a certain deadline.
“Since the 1960s, the only thing that has mattered is when you receive your package; a handwritten date has no significance,” Loney said.
John Gore, a state and state Republican, argued that the date requirement serves “obvious purposes,” including as a safeguard against flaws in the election office’s system for recording the date ballots were returned.
Judge Patricia McCullough noted that many formal documents, such as checks and contracts, must be both signed and dated. Gore agreed, saying the requirement “underscores the seriousness of a voter’s choice to vote by mail rather than in person.” It also deters fraud, Gore said, noting that even if a vote is not counted, it deprives a fraudster of a potential defense.
Since 2020, state and federal courts have addressed the issue of whether votes could be thrown out for missing dates in at least eight separate cases. The Pennsylvania Supreme Court ruled in 2020 that votes with missing dates would be counted in that year’s presidential election, the first in which mail-in voting was widely used, but not in future elections.
Federal courts have considered whether the date requirement violates the materiality clause of the Civil Rights Act, which prohibits states from disenfranchising voters because of immaterial errors in the documents. Most recently, the U.S. Court of Appeals for the 3rd Circuit he withdrew the decision a federal district court judge in Western Pennsylvania who found that the materiality clause only applies when the state establishes Who can vote and not govern How they have to cast their votes
“This has really brought to a head the need to address this as a constitutional right issue under the Pennsylvania Constitution,” Loney told the Capital-Star after Thursday’s argument. The Fair and Equal Elections Clause could be the final avenue for challenging the date requirement.
“Given the current state of the law and the facts available, I can’t think of any other challenge that remains for us to resolve,” Loney said.
Loney noted that many of the questions the justices asked the Republican intervenors concerned procedural issues they raised.
“From our perspective, it’s very telling that interveners have to rely on hypertechnical arguments,” Loney said. “Once you get to the merits and you have to defend that requirement on your own, without waiving the merits, it falls apart very quickly.”
Loney said the court has indicated it intends to issue a ruling quickly enough for the Supreme Court to hear the appeal before the fall election.
