Commonwealth Court: Mail-in ballots with errant dates on their envelopes should be counted

The Commonwealth Court said Friday that not counting mail-in ballots with missing or mistaken dates on their outer envelopes is unconstitutional.

“The refusal to count undated or incorrectly dated but timely mail ballots submitted by otherwise eligible voters because of meaningless and inconsequential paperwork errors violates the fundamental right to vote recognized in the free and equal elections clause,” the panel wrote in a 91-page opinion.

It is likely the decision will be appealed. Attorneys for the Republican Party did not return messages for comment.

The ruling was praised by the voting rights organizations that filed the initial lawsuit in May.

“This decision has strengthened the right to vote in Pennsylvania,” said Brent Landau, executive director of the Public Interest Law Center, one of the organizations that represented the plaintiffs. “Mail ballots will no longer be rejected because of a meaningless requirement to fill out a date that isn’t used for anything.”

But how the court’s opinion will apply across Pennsylvania is not yet clear, given the lawsuit named only Allegheny and Philadelphia counties as defendants.

“We think this is binding on every county,” said Vic Walczak, legal director of the ACLU of Pennsylvania. “It’s an appellate court that thoroughly considered this issue.”

A group of voting rights organizations sued the Pennsylvania secretary of state and election boards in Allegheny and Philadelphia counties, alleging their failure to count mail-in ballots with undated or misdated return envelopes disenfranchised 10,000 voters in the 2022 election and thousands more in this year’s primary.

The lawsuit alleged previously unargued state constitutional claims.

Pennsylvania Secretary of State Al Schmidt took the side of the petitioners and at oral argument on Aug. 1 told the Commonwealth Court that the date on the return envelope for mail-in ballots is irrelevant.

The plaintiffs and secretary argued that the dates are not used to ensure timely submission because mail-in ballots must be received by 8 p.m. on Election Day to be counted, and they are time stamped when they are received.

They also don’t determine a person’s eligibility to vote or whether they voted in a timely manner because the ballot inside the envelope is dated, the plaintiffs said.

As part of their argument, the petitioners — which included Black Political Empowerment Project, Common Cause and POWER Interfaith — said their members must now spend time and resources educating voters on the necessity of dating ballots accurately instead of focusing on get-out-the-vote and other educational efforts.

The Republican National Committee, which asked for permission to intervene in the case, argued that the petitioners lacked standing to challenge the date requirement and that the envelope date is required by the Legislature.

The Commonwealth Court discounted both of those claims.

In writing their opinion, the majority panel — which included Judges Ellen Ceisler, Michael H. Wojcik and Matthew S. Wolf, and President Judge Renee Cohn Jubelirer — cited the state Constitution, which says “elections shall be free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.” They also cited state Supreme Court precedent, which says, “every rationalization within the realm of common sense should aim at saving [a] ballot rather than voiding [it.]”

The panel found that the dating provisions “impose a significant burden on one’s constitutional right to vote.”

“As has been determined in prior litigation involving the dating provisions, the date on the outer absentee and mail-in ballot envelopes is not used to determine the timeliness of a ballot, a voter’s qualifications/eligibility to vote, or fraud,” they wrote. “It is therefore apparent that the dating provisions are virtually meaningless and, thus, serve no compelling government interest.”

The court noted that since a February 2023 state Supreme Court case, thousands of Pennsylvania voters have had their ballots rejected based on missing or errant dates on the return envelope. Also since that time, the secretary of state has updated guidance to county boards of elections three times.

Friday’s opinion should resolve the problem, said Mike Lee, executive director of the ACLU of Pennsylvania.

“Today’s decision is a win for voters and democracy,” he said. “No one should lose their vote over a simple human error that has no relevance to whether or not the ballot was received on time.”

But Judge Patricia McCullough, a Republican who was one of the only judges in the country to side with the GOP and Trump campaign following the November 2020 election, issued a 56-page dissenting opinion. In it, she said the date requirements “do not burden the fundamental voting franchise of a single Pennsylvania voter.”

The majority opinion, she wrote, was decided in an “untethered and unprecedented fashion,” and that her colleagues “found jurisdiction where it does not exist” and ignored a century of precedent.

“Because I am convinced that the majority’s pronouncements in this case misapply the law and involve a wholesale abandonment of common sense, I respectfully, but vigorously, dissent,” she wrote.

McCullough called the dating requirement a “neutral ballot-casting rule” that governs how citizens vote. The rule, she wrote, grants every voter “the same free and equal opportunity” to cast a ballot.

McCullough wrote that her colleagues on the bench “discarded their judicial robes and donned legislative hats” to reach their conclusions.

“Exceeding our function as impartial arbiters of the constitution and rewriting legislation to keep up with the times,” she wrote, “does little to reinforce trust and respect for the commonwealth’s system of justice.”