Senior Pennsylvania elections officials argued in a new court filing Tuesday that handwritten dates on the envelopes that many state voters use to mail in ballots should not be deemed mandatory, in part because of a half-century-old legislative ruling deemphasizing their importance.
The filing, made under a compressed schedule laid out just four days earlier by the state Supreme Court, concerns a dispute that has repeatedly arisen in state courts since lawmakers made mail-in voting widely allowable three years ago: whether ballots with incorrect or missing dates on their return envelopes can be disqualified.
State and national Republican Party organizations and several GOP voters asked the justices to take up the issue as it became clear that some county officials who run the nuts and bolts of vote counting are poised to throw out ballots without the proper dates while others are expected to count them.
In their brief, two high-ranking Department of State officials under Democratic Gov. Tom Wolf said that state law between 1945 and 1968 told county election boards to set aside mail-in ballots if the date on the envelope was later than the date of the election.
But when the Election Code was amended in 1968, they said, lawmakers “deleted from the Election Code’s canvassing section the requirement that counties set aside ballots based on the date appearing on the ballot-return envelope.”
A handwritten exterior envelope date is not needed to ensure a ballot has been received by the Election Day deadline because those ballots are supposed to get time-stamped at county offices.
The Republicans who brought the case, however, argued in a brief filed Monday that the “General Assembly could not have been clearer: an absentee or mail-in voter ‘shall … fill out, date and sign the declaration’ printed on the outer envelope of the ballot.” If the justices do not direct county boards to throw out ballots with undated or incorrectly dated exterior envelopes, they argued, counties should at least be told to segregate them during counting.
Far more Democrats than Republicans have used mail-in ballots since the 2019 law removed the need for voters to qualify based on a list of allowable excuses, so it’s likely that many more Democratic than Republican votes will be disqualified if the high court rules that accurate dates are mandatory.
The Pennsylvania chapter of the American Civil Liberties Union said Tuesday that some voters in Allegheny County, which includes Pittsburgh, have received mail-in ballots that were mistakenly printed without a form on the exterior envelope for voters to sign and date. The organization also wants elections officials to contact voters whose mail ballots have been returned to the county as undeliverable.
It isn’t clear how many ballots are at issue in Allegheny County, where county government spokeswoman Amie Downs said the ACLU’s letter is under review.
The justices asked the parties to consider whether making the envelope dates mandatory under state law would violate provisions of the U.S. Civil Rights Act of 1964.
Wolf’s lawyers argued it would, because the date on the envelope is the type of “immaterial error or omission” the federal law said should not be used to prevent voting. The Republican groups and voters, on the other hand, said that the federal law’s so-called materiality provision does not apply to actual voting but rather to “an application, registration or other act requisite to voting.”
“Voting is voting; it is not an act requisite to voting,” they argued.
The 3rd U.S. Circuit Court of Appeals ruled in May that the dates aren’t mandatory. But earlier this month, that decision was deemed moot by the U.S. Supreme Court, adding uncertainty to the status of ballots with incorrect or missing dates and leading to the current litigation.
The Pennsylvania Supreme Court said Friday that it will likely rule on the issue without holding oral arguments. Election Day is in two weeks.
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