In Big Win for Voters, Pennsylvania Must Count Undated Mail-In Ballots, Court Rules

A federal circuit court upheld a lower court ruling Tuesday that requires Pennsylvania to count undated or wrongly dated mail-in ballots, finding that a previous law rejecting such ballots violated the First and 14th Amendments. 

“The date requirement imposes a burden on Pennsylvanians’ constitutional right to vote,” the Third Circuit held in an unanimous opinion. “And it culminates in county election boards discarding thousands of ballots each time an election is held. The date requirement will not protect against the vast majority of attempts at voter fraud.”

The lawsuit stems from a 2022 challenge* to the state’s instructions to county boards of elections to not count a mail-in ballot that was timely cast but either missing a date or containing the wrong date on the outer return envelopes. Federal District Court Judge Susan Paradise Baxter, who was appointed by President Donald Trump in his first term, ruled that the guidance imposed constitutionally impermissible burdens on the right to vote. 

The opinion, written by President George W. Bush appointee Judge D. Brooks Smith, emphasized that democracies should endeavor to count every vote, rather than hunt for disqualifying technicalities. “The date requirement seems to hamper rather than facilitate election efficiency. By its nature, it fails to add solemnity to the process of voting,” Smith wrote. “And discarding thousands of ballots every election is not a reasonable trade-off in view of the date requirement’s extremely limited and unlikely capacity to detect and deter fraud.

“Casting a ballot and having it counted are central to the democratic process,” he added.

The opinion came down a day after the court blocked the Republican National Committee’s (RNC) request to stay the lower court’s decision until after the 2025 elections, in which Pennsylvanians will vote on judicial retentions, local offices and special elections to fill vacant legislative seats. In their motion seeking a stay, the RNC noted the mistaken mail-in ballot margin was outcome determinative in several races.

The issue has been the subject of numerous lawsuits in recent years, leading to confusion across the Commonwealth. The Pennsylvania Supreme Court is considering a separate lawsuit regarding the instructions under the state law, after multiple lower court rulings found disqualifying mail-in ballots with fault dates violates the Pennsylvania Constitution’s Free and Equal Elections Clause. 

Maya Bodinson contributed to this report.

The Elias Law Group (ELG) represented plaintiffs in this case. ELG firm chair Marc Elias is the founder of  Democracy Docket.