Pennsylvania Counties Undated Mail-in Ballots Primary Certification

Chapman v. Berks County Board of Elections

Filed: July 11, 2022

Decided: August 19, 2022

Lawsuit filed by Acting Secretary of the Commonwealth Leigh Chapman and the Pennsylvania Department of State against three counties (Berks, Fayette and Lancaster) that allegedly refused to count valid undated mail-in ballots in their final 2022 primary election certification totals. The plaintiffs request that all eligible ballots are counted and included in vote certification totals even if the voter failed to write a date on the outer mailing envelope when completing their mail-in ballot. In prior lawsuits regarding undated mail-in ballots in the state, both federal and state courts have ruled that undated ballots must be counted. The plaintiffs ask the court to order the Berks, Fayette and Lancaster counties’ boards of elections to include all timely received mail-in ballots in their certified election returns. A hearing was held on July 28; you can learn more about what happened in the section below. On Aug. 19, the court ruled that the counties must certify their results including all lawfully cast ballots which includes undated mail-in ballots.

Courtroom Updates

On July 28, the Pennsylvania Commonwealth Court heard oral arguments in this case. The plaintiffs, the acting secretary of the Commonwealth and the Pennsylvania Department of State (DOS), argued that the three counties — Berks, Lancaster and Fayette — must include undated mail-in ballots in their 2022 primary election totals. The defendants — the three counties that have not yet certified their election results with undated mail-in ballots, despite multiple requests from the DOS and court orders — argued that the secretary does not have the authority to order the counties to include undated mail-in ballots in their vote totals and the lawsuit should be dismissed.

Witnesses included Jonathan Marks, the deputy secretary for Elections and Commissions at the DOS, who attested to the facts of the case, and three commissioners from each of the counties refusing to certify the results who explained why they refused to count undated mail-in ballots in the vote totals. The commissioners testified that they believed the election code is clear that undated ballots should not be counted and that the ambiguity around court orders led them to not count undated mail-in ballots. The counties argued that it is not within the secretary’s authority to order the counties to “re-certify” the election. The attorney for the DOS responded that, while the secretary does not have the authority to decide which votes should count, she does have an obligation to ensure the certification is done with complete vote totals. The 6-hour long hearing concluded with a statement from the judge noting she would take the parties’ arguments and facts into consideration.

ICYMI: You can read our Twitter thread on the hearing here.

During the hearing, the attorneys for the three counties insisted that the date on the outer envelope is material to determining whether a mail-in ballot is valid. Mr. Marks and the attorneys representing the state argued that there is no administrative use for the date on the envelope of mail-in ballots, as counties time-stamp ballots upon receipt and thus do not use the date to determine if the ballot was timely received, so the date is immaterial to whether or not the ballot is valid. You can learn more about the definition of material and immaterial and what it means for voting here.

Mr. Marks, who has served in the DOS for 27 years, testified that undated mail-in ballots must be included in certification totals: “It was our determination based on the case law that counties had a duty to certify results that included…undated ballots, and that failing to do so…would…mean that the counties have not completed their statutory duty to certify votes from all legally cast ballots.”

Mr. Leinbach, the chair of the Berks County Board of Commissioners, described what he views as ambiguity around election procedures to argue that that “this type of issue is what is causing a lack of trust in the system.” Mr. Leinbach is the chair of a county board that is allegedly refusing to include valid ballots in vote totals.

The attorney for the Pennsylvania DOS argued that the secretary cannot complete her duty to certify election results when there are incomplete vote totals: “The 3 counties in this case, Your Honor, are holding up final certification of the primary election because they refuse to complete the certification of every lawfully cast ballot.”

When the Pennsylvania attorney asked if the commissioner of the Fayette County Board chose not to follow court orders, he responded “yes.”

When asked about Migliori v. Lehigh County Board of Elections, which states that undated mail-in ballots must be counted, the Lancaster and Berks County attorney stated “well, I would argue that it is wrong.”

Throughout the hearing, the attorneys for the counties seemed to imply that the judge’s previous order in McCormick v. Chapman — which ordered counties to count undated mail-in ballots in the primary race for the Republican Senate nomination — was misinterpreted. The attorney for Berks and Lancaster counties argued that “I cannot imagine that [this court’s] order meant what the acting secretary says it means…that these undated ballots must be counted and therefore included in the certified results.” The judge then responded, “Yes, well, I stand by my opinion in the order of course.” To this, the attorney for Berks and Lancaster counties followed up with: “I urge the court to consider…that the dating requirement doesn’t go to the qualification about the voter, it goes to whether the vote that was cast will be counted. It’s not disenfranchising,” seemingly making the argument that not counting valid ballots does not disenfranchise the voter who cast that ballot.