WASHINGTON, D.C. — On Tuesday, Nov. 1, the Pennsylvania Supreme Court ruled that counties cannot count undated mail-in ballots (ballots that are timely cast and valid but missing a date on their outer return envelopes) and wrongly dated mail-in ballots (ballots that are timely cast and valid but have an incorrect date, such as the voter’s birthday, on their outer return envelopes) in this year’s midterm elections. This ruling comes after the Republican National Committee, National Republican Congressional Committee, Republican Party of Pennsylvania and Republican voters filed a King’s Bench petition (a petition filed in the Pennsylvania Supreme Court when petitioners seek immediate relief from the state’s highest court) against Acting Secretary of the Commonwealth Leigh Chapman (D) and all 67 county boards of elections challenging the ability of counties to count both undated and wrongly dated mail-in ballots. After an expedited briefing process before the state’s highest court, the court issued this ruling stating that county boards of elections are ordered to “refrain from counting any absentee and mail-in ballots received for the November 8, 2022…election that are contained in undated or incorrectly dated outer envelopes.” The court also ordered the county boards to “segregate and preserve any ballots contained in undated or incorrectly dated outer envelopes.”
Notably, the state Supreme Court’s six current justices were evenly divided as to whether not counting undated or wrongly dated mail-in ballots would violate the Materiality Provision of the Civil Rights Act. After the sudden passing of former Chief Justice Max Baer in early October, there is currently an even number of justices on the court. Despite this deadlock, the court ruled that counting these ballots would violate state law and thus directed counties not to count these ballots. Today’s ruling means that wrongly dated and undated mail-in ballots will not count this November. Pennsylvania voters can ensure their mail-in ballots are properly dated by reviewing this guidance.