Photo courtesy of Capital-Star
Commonwealth Court is likely to rule in the latest challenge to part of Act 77 ahead of the November election
Throwing out mail-in ballots solely because voters fail to write the date violates the Pennsylvania Constitution, an attorney for a group of get-out-the-vote organizations argued Thursday in Commonwealth Court.
The lawsuit by nine voting access groups represented by the American Civil Liberties Union of Pennsylvania challenges part of the state’s vote-by-mail law and could play a critical role in the November presidential election and hundreds of down-ballot races.
Since state lawmakers passed Act 77 in 2019 and gave voters the ability to cast their votes by mail without an excuse, tens of thousands of mail-in ballots have been discarded because they didn’t bear handwritten dates on their outside envelopes, as required by the law.
The lawsuit now before Commonwealth Court is the latest in a series of cases interpreting the vote-by-mail law and its interplay with federal voting rights laws. But it’s the first time the date requirement has been challenged as a violation of the state Constitution’s Fair and Equal Elections Clause.
ACLU of Pennsylvania attorney Stephen Loney told the court that rejecting ballots that are returned by the election night deadline because they lack a date or have an incorrect date is a violation of the most important fundamental right that Pennsylvania residents have.
The requirement is “so unique in its pointlessness” that there’s no reason for enforcing it that passes the judicial review process that courts use to determine whether a restriction of rights is constitutional, Loney argued.
He added, “Multiple courts have definitively rejected all arguments presented about the imagined purposes of this rule. It serves no purpose in election administration at all.”
The state and national Democratic parties and Secretary of the Commonwealth Al Schmidt have weighed in on the side of the voting access groups. The state GOP, the Republican National Committee and Westmoreland County Election Commissioner Doug Chew joined the case to defend the date requirement.
Challenges to the law in earlier cases have established that county election officials don’t refer to the dates voters write on their ballots to determine whether a ballot is timely, Michael Fischer, an attorney for Schmidt said. Rather, ballots are stamped or otherwise recorded when they arrive in the election office and those that arrive after 8 p.m. on Election Day are not accepted.
Even in a case in which a woman signed and dated an absentee ballot for her deceased mother, the only significance to the date was that it was after the mother’s death, alerting officials to the attempted fraud. An election official testified that the ballot would have been canceled regardless of the attempted fraud because the ballot 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 an absentee ballot was timely. The requirement to date ballots remained in the code after the focus shifted to whether the ballot was received by a certain deadline.
“Ever since the 60s, the receipt deadline is the only thing that has mattered, the handwritten date has not mattered at all,” Loney said.
John Gore, representing the state and national Republican parties, argued that the date requirement serves “unquestionable purposes” including as a backstop for failures in the election office’s system of recording when ballots are 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 “drives home the solemnity of the voter’s choice to vote by mail rather than voting in person.” It also deters fraud, Gore said, noting that even though the ballot wasn’t counted, it took away a potential defense for the fraudster.
Since 2020, state and federal courts have addressed whether ballots can be discarded over missing dates in at least eight separate cases. The Pennsylvania Supreme Court ruled in 2020 that ballots with missing dates would be counted for that year’s presidential election, the first in which mail ballots were widely used, but not in future elections.
Federal courts examined whether the date requirement conflicted with the Materiality Clause of the Civil Rights Act, which bars states from disenfranchising voters over inconsequential paperwork mistakes. Most recently, the 3rd U.S. Circuit Court of Appeals reversed the decision of a western Pennsylvania federal district court judge, finding that the Materiality Clause only applies when the state is determining who may vote and not rules on how they must cast ballots
“That really brought to a head the need to address this as a matter of constitutional law under the Pennsylvania Constitution,” Loney told the Capital-Star after the argument Thursday. The Fair and Equal Elections Clause may be the last avenue to challenge the date requirement.
“Based on the state of the law today and the facts available I can’t think of another available challenge that we have left on the table,” Loney said.
Loney noted that many of the questions the judges had for the Republican intervenors focused on procedural issues they had raised.
“From our perspective it is very telling that the intervenors have to rely on hyper technical arguments,” Loney said. “Once you get to the merits and have to defend this requirement on its own without ducking the merits, it falls apart very quickly.”
Loney said the court has indicated that it intends to issue a decision soon enough for an appeal to be heard by the state Supreme Court before this fall’s election.
