WASHINGTON, D.C. — On Tuesday, Oct. 11, the Pennsylvania acting secretary of state released a statement about undated mail-in ballots in response to a U.S. Supreme Court order issued earlier in the day. Acting Secretary of State Leigh M. Chapman (D) clearly states that counties are “expected to include undated ballots in their official returns for the Nov. 8 election,” consistent with the Pennsylvania Department of State’s latest guidance on the issue. The secretary notes 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.”
This update derives from a series of lawsuits in both state and federal court. In Migliori v. Lehigh County Board of Elections, voters in a 2021 local judicial election sued after their mail-in ballots were discarded for lacking a date on the outer envelopes. These ballots were received before Pennsylvania’s 8 p.m. deadline on Election Day, so stamped as timely, and otherwise valid. The only reason the ballots were thrown out was because handwritten dates on the envelopes were missing, qualifying these ballots as “undated mail-in ballots.” On May 27, the 3rd U.S. Circuit Court of Appeals agreed that voters should not be disenfranchised for failing to write a date, ruling that the ballots in questions should be counted. Two weeks later, the U.S. Supreme Court denied a shadow docket request to pause the 3rd Circuit ruling.
As this issue was being litigated in federal court, a similar lawsuit — McCormick v. Chapman — was filed in state court by trailing U.S. Senate candidate David McCormick (R). A state court granted McCormick’s request to count undated mail-in ballots; this decision didn’t change the outcome of the race and McCormick soon conceded to his GOP primary opponent Dr. Mehmet Oz (R).
Within the span of a week, a federal circuit court and a state appellate court both concluded that not counting undated mail-in ballots would violate the Materiality Provision of the Civil Rights Act of 1964. Nonetheless, weeks after Pennsylvania’s May primary election, four county elections boards still refused to include undated mail-in ballots into their certification totals. In early July, the Pennsylvania Department of State and secretary of state sued three of these boards over their obstruction. Once again, a Pennsylvania court ruled that undated mail-in ballots must be included; the counties complied soon after.
The issue appeared settled. The Pennsylvania department of state released updated guidance on Sept. 26 to clarify and reiterate the expectations of all Pennsylvania election officials: “Any ballot-return envelope that is undated or dated with an incorrect date but that has been timely received by the county shall be included in the pre-canvass and canvass.”
On Oct. 11, in a surprise order from the U.S. Supreme Court, a majority of the justices vacated, meaning voided, the 3rd Circuit’s decision in Migliori that required the counting of undated mail-in ballots. In a single paragraph order, the Court said it would review the case and, instead of placing the case on its merits docket (as is typically done when granting certiorari), the Court issued a summary disposition (meaning it issued a ruling without merits briefing or oral argument) and then remanded (sent back) the case to the 3rd Circuit to be dismissed as moot (meaning there is no longer an issue for the court to resolve). The Court’s move indicates that the prior decision is no longer authoritative for other states and territories in the 3rd Circuit: Delaware, New Jersey and the U.S. Virgin Islands. However, it does not impact state court rulings and state-issued guidance that has continually made clear that undated mail-in ballots must be counted by Pennsylvania counties.
Today, Oct. 12, a hearing took place in a distinct lawsuit over a 2019 law’s expansion of no-excuse mail-in voting in Pennsylvania. In this case, the Republican plaintiffs assert that the challenged law, Act 77, must be struck down in light of the Migliori decision due to its provision that states “[i]f any provision of this act or its application to any person or circumstance is held invalid, the remaining provisions or applications of this act are void.” In legal terms, this is known as a non-severability provision. However, in today’s hearing — held just one day after the U.S. Supreme Court’s latest order — the judge asked the lawyers if they “believe that the United States Supreme Court’s vacation of Migliori has any effect on your claims here?” The attorney representing the GOP lawmakers advancing the non-severability argument responded: “Not really…The bottom line is the Supreme Court vacated Migliori…but it still has persuasive authority.” The attorney also pointed to the fact that state court decisions and state guidance to count undated mail-in ballots still stands.
The GOP lawmakers who want to limit mail-in voting hoped to wield the 3rd Circuit’s previous ruling in Migliori to their favor. Even their lawyer recognizes, however, that the Supreme Court’s latest action, though it came as a surprise, has no tangible impact on the expectations for counting valid mail-in ballots come November.