A coalition of grassroots organizations has filed a lawsuit against Secretary of the Commonwealth Al Schmidt and election officials in Pennsylvania’s two largest counties, seeking an end to the practice of disqualifying mailed ballots without the voter’s handwritten date written on the outer envelope.
Third U.S. Circuit Court of Appeals ruled in March that ballots without an external date will not be counted, even if received before Election Day. A panel of three judges overturned the lower court’s ruling which found that rejecting ballots because of the required date violates federal law prohibiting voter disenfranchisement.
“Pennsylvania should make it easier, not harder, to vote,” Mike Lee, executive director of the ACLU of Pennsylvania, said in a statement. The organizations in the lawsuit are represented by attorneys from the ACLU of Pennsylvania, 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 across the commonwealth,” Lee added. “With the stakes so high in the 2024 election, Pennsylvania counties must do everything in their power to ensure every vote is counted.”
The matter is separate from a federal lawsuit challenging date requirement filed by the NAACP, which argued that the requirement violated 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 the right to vote because of an error or omission “in any record or document relating to any application, registration, or other action required to vote” unless it is material to the person’s qualifications to vote.
Senior U.S. District Judge Thomas Ambro wrote in the District Court’s March 3 ruling that the date requirement “serves no apparent purpose,” but because the state Supreme Court has ruled it is required, “undated or incorrectly dated ballots are invalid under state law and must be set aside.”
The issue of whether mail-in ballots with a missing or incorrect date on the outer envelope should be considered in elections since Act 77, Pennsylvania’s no-excuse absentee voting law, went into effect in 2020. The requirement to date the return envelope has been a point of contention for voting rights groups and the courts, and Pennsylvania has redesigned its absentee ballots in November 2023, hoping to reduce confusion by including clearer guidance.
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In response to a lawsuit filed by the 2022 Republican National Committee, the Pennsylvania Supreme Court ruled that more than 10,000 mail-in ballots on which voters did not write the date on the outer envelope or entered the wrong date should be rejected.
Tuesday’s lawsuit filed in the Commonwealth Courtt, includes statements from several voters who were horrified to discover that their votes were rejected in the last election due to the requirement for an external signature on the ballot. They include Mary Stout, a Berks County voter who mailed a ballot for the April primary election but was informed it was rejected because it was missing a handwritten date on the outer envelope. The notice informed her that she would have to cast her vote in person, which Stout said she could not do due to mobility issues. “As a result, my vote was not counted,” Stout said.
“Our state constitution is clear: In Pennsylvania, every vote matters,” Ben Geffen, senior staff attorney at the Public Interest Law Center, said in a statement. “Procedures that unnecessarily prevent even one eligible voter from exercising this most fundamental right are suspect. This senseless handwritten date requirement – which results in thousands of eligible ballots being rejected every year due to harmless clerical errors – cannot continue in Pennsylvania.”
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The lawsuit names Schmidt and the Philadelphia and Allegheny County Boards of Elections. The authors of the petition 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 court to declare handwritten date rule unconstitutional . They are demanding a ban on the rule that rejects absentee ballots without a handwritten date.
“Unfortunately, disqualifying absentee ballots due to a minor documentation error on the return envelope discourages voter participation in the democratic process,” Kadida Kenner, CEO of the New PA Project Education Fund, said in a statement. “We want Pennsylvanians to vote twice a year – every year – and not be disenfranchised by this unnecessary rule.”
The Philadelphia Department of Elections declined to comment on the matter.
Ellen Lyon, deputy director of communications for the State Department, said Tuesday that the department was aware of the lawsuit and was still reviewing the petition, and reiterated both DOS’s position and its guidance on absentee ballots.
“Over the years of controversy over this issue, it has become undeniably clear that the handwritten date has no significance in the administration of elections in Pennsylvania,” 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 record or incorrectly entering a date that serves no function.”
“However, taking into account existing court decisions and pending further legal developments, our guidelines for undated and misdated ballots remains unchanged: all voters must sign and date the declaration envelope for their vote to be counted,” she added.
Abigail Gardner, a spokeswoman for Allegheny County, said the county is aware of the ongoing litigation and, like other counties, is required to follow guidance from the Department of State to comply with the court’s ruling that mail-in ballots must be marked date by the voter.
“Allegheny County is committed to ensuring that voters have the information they need to correctly complete their ballots and consistently employs a robust corrections process so that voters can correct unintentional errors such as an incomplete date or signature on the ballot return envelope,” Gardner said . in a statement.
She added that in the 2024 primary election, the Allegheny Division of Elections was able to aid the 62% of voters who submitted an absentee ballot with an error on the envelope or who omitted a “secret” envelope correct their errors and resubmit their ballots to vote.
“The Allegheny County Administration takes voter rights seriously and continues its efforts to ensure that votes cast by registered voters are counted,” Gardner said.
Update: This article was updated on May 28, 2024 shortly after publication with comment from Allegheny County and at 5:05 p.m. comment from the Department of State.
