Pennsylvania Supreme Court to Revisit Mail-In Ballot Date Dispute; SCOTUS Declines Case
The Pennsylvania Supreme Court has agreed to weigh the issue of whether disqualifying mail-in ballots with incorrect or missing outer envelope dates violates the state constitution. Meanwhile, the U.S. Supreme Court today declined to review a similar Pennsylvania case about whether rejecting otherwise valid mail-in ballots with incorrect or missing handwritten dates on return envelopes violates a federal Civil Rights Act provision.
Pennsylvania’s highest court on Friday agreed to review Republicans’ appeal of a Commonwealth Court decision ordering the Philadelphia County Board of Elections to count 69 previously rejected mail-in ballots from a September 2024 special election for two state House districts.
Although the Commonwealth Court’s ruling exclusively applied to the special election at issue in the case, the Republican National Committee (RNC) nevertheless secured a stay from the state Supreme Court, which reiterated that undated or wrongly dated mail-in ballots wouldn’t count for the Nov. 5 general election.
In light of the justices agreeing to consider the RNC’s appeal in full, the Pennsylvania Supreme Court will have yet another opportunity to resolve the perennial conflict over the hotly contested mail-in ballot rule in an off-cycle year.
Although lower Pennsylvania courts have recently ruled on multiple occasions that disqualifying mail-in ballots with faulty dates violates the Pennsylvania Constitution’s Free and Equal Elections Clause, the state Supreme Court has never determined whether the date requirement is constitutional.
As part of its Jan. 17 order, the court also indicated that if it ultimately deems the date requirement unconstitutional, it will then have to consider the validity of Pennsylvania’s universal mail-in voting law, Act 77, under which the handwritten date rule falls. Republicans have previously argued that Act 77’s so-called “nonseverability provision” requires that the entire law be struck down if a single aspect of it is deemed invalid, but voting rights advocates have refuted this argument.
Since the beginning of 2024 alone, at least 12 lawsuits have involved disputes over the commonwealth’s contentious handwritten date requirement, which continues to disenfranchise thousands of voters each election cycle.
Less than a month before the Nov. 5 election, the commonwealth’s highest court declined a request from pro-voting groups to strike down the requirement, reasoning that it was too close to Election Day to alter the state’s existing voting rules.
And ahead of the 2022 midterm elections, the Pennsylvania Supreme Court ruled that mail-in ballots with handwritten date defects must be thrown out — a move that ultimately resulted in the disqualification of a staggering 10,000 otherwise timely ballots.
But both state and federal courts — as well as Pennsylvania election officials — have agreed the requirement is irrelevant to determining the timeliness or validity of a mail-in ballot. Instead, election officials utilize the time at which a ballot is received and scanned into Pennsylvania’s mail-ballot tracking system.
That disparity was at the center of a separate case that wound its way up to the U.S. Supreme Court, ultimately to be denied cert. Today’s order stems from a 2022 federal lawsuit led by the Pennsylvania State Conference of the NAACP alleging that the practice of disqualifying mail-in ballots on the basis of handwritten date errors violates the Civil Rights Act’s Materiality Provision.
The Materiality Provision specifically protects against disenfranchisement on the basis of trivial errors or omissions that are unrelated to a voter’s qualifications.
In its initial complaint, the NAACP contended that because the timeliness of mail-in ballots in Pennsylvania is determined by when county election officials receive and timestamp the ballots, “the presence or absence of a handwritten date on the envelope is utterly immaterial to determining whether the ballot was timely received, much less to assessing a voter’s qualifications.”
A federal district court agreed with that interpretation, deeming the handwritten date requirement “wholly irrelevant” in a November 2023 ruling. But the 3rd U.S. Circuit Court of Appeals later reversed the decision at the RNC and other GOP committees’ request.
According to the 3rd Circuit’s reasoning, the Materiality Provision only applies to the voter registration process — which concerns whether a person is qualified to vote — but “does not apply to rules, like the date requirement, that govern how a qualified voter must cast his ballot for it to be counted.”
This interpretation, the NAACP argued in its cert petition, “is contrary to the statute’s plain text and ignores or misapplies settled rules of statutory construction. The statute expressly covers not just errors on voter registration forms but errors on ‘any record or paper relating to any application, registration, or other act requisite to voting.’”
Although the 3rd Circuit panel rejected the Materiality Provision claim — the subject of the NAACP’s U.S. Supreme Court Appeal — it allowed the plaintiffs’ other claims to proceed in the district court. A decision remains pending from a federal judge as to whether disqualifying mail-in ballots for date errors contravenes the right to vote under the U.S. Constitution’s First and 14th Amendments.
Pennsylvania Secretary of the Commonwealth Al Schmidt (R) had urged the nation’s highest court to take up the matter, emphasizing in a recent legal brief that the case turns on the question of whether “thousands of indisputably qualified Pennsylvanians can be denied their right to vote for failing to write a date that serves no function in Pennsylvania’s elections.”
Schmidt cited 2024 post-election data demonstrating that thrown-out ballots disproportionately came from elderly voters, who have a higher propensity to vote by mail. “In the 2024 general election, the rejection rate for dating errors among mail voters aged 70 and over was 1.6 times the rejection rate among mail voters aged 50 and under.” He added that “rejecting ballots for dating errors does not, however, appear to strongly disfavor one political party over another.”
In contrast, the RNC and other members of the GOP have staunchly defended the rule as a means of preventing fraud and securing election integrity.
While the U.S. Supreme Court appeal ends here, the Pennsylvania Supreme Court’s decision to take up the case ensures the date issue will likely be decided prior to the next general election cycle. This will provide voters and election officials with much needed clarity on the oft-litigated matter.
Read the PA Supreme Court order here.