WASHINGTON, D.C. — On Wednesday, Oct. 19, several nonpartisan voter engagement organizations — the League Of Women Voters of Pennsylvania, Philadelphians Organized to Witness Empower and Rebuild, Common Cause Pennsylvania, Black Political Empowerment Project, The NAACP Pennsylvania State Conference and Make The Road Pennsylvania — filed a motion to intervene in a Republican-sponsored lawsuit to prevent the counting of wrongly dated mail-in ballots (ballots that are timely cast and valid but have an incorrect date on their outer return envelopes) and undated mail-in ballots (ballots that are timely cast and valid but missing a date on their outer return envelopes) in Pennsylvania. In their motion to intervene, the voter engagement groups argue that the Republican petitioners’ “requested relief would disenfranchise Pennsylvania voters.”
In addition to the six nonpartisan voter engagement organizations, four Democratic groups (the Democratic Senatorial Campaign Committee, Democratic Congressional Campaign Committee, Democratic National Committee and Pennsylvania Democratic Party) also filed a motion to intervene. This intervention brings the total number of pro-voting groups intervening in the lawsuit up to 10. Including the Republican plaintiff groups, there are 13 total organizations involved in the case with an overwhelming majority (10) defending mail-in voting in the commonwealth. According to the Pennsylvania Department of State, as of Oct. 19, 1,225,782 voters have already applied to vote by mail in Pennsylvania, meaning that the stakes of this lawsuit could not be higher.
Republicans launched this attack on mail-in voting just days after the U.S. Supreme Court vacated (meaning voided) a decision by the 3rd U.S. Circuit Court of Appeals that required Pennsylvania to count mail-in ballots that were previously rejected for lacking handwritten dates next to voters’ declaration signatures on the outer ballot envelopes. The Pennsylvania Department of State immediately clarified that the Supreme Court’s order does not change the policy that undated mail-in ballots must be counted. In the guidance, the secretary noted that the “order from the U.S. Supreme Court…does not affect the prior decision of [the] Commonwealth Court in any way. It provides no justification for counties to exclude ballots based on a minor omission, and we expect that counties will continue to comply with their obligation to count all legal votes.”
In their King’s Bench petition (a petition filed in the Pennsylvania Supreme Court when petitioners seek immediate relief from the state’s highest court), the Republicans invoke the radical independent state legislature (ISL) theory to argue that the secretary’s guidance is unlawful because only the Pennsylvania Legislature and “not any other organ of state government” has the “‘authority to regulate election[s].’” The voter engagement groups rebut the petitioners’ ISL theory argument, noting that the petitioners “repeatedly suggest that the U.S. Constitution’s Elections Clause requires the Court to order the disenfranchisement of Pennsylvania mail-ballot voters,” which the groups argue is “wrong on multiple levels.” The groups also note that the “[p]etitioners’ suggestion that state courts are prohibited from interpreting any state election laws is a radical and unaccepted theory, not the law.” The groups note that it’s “Pennsylvania voters who stand to lose” if the court grants the petitioners’ requested relief.