UPDATE: On Oct. 21, the Pennsylvania Supreme Court agreed to hear the King’s Bench petition. The petitioners’ brief is due on Oct. 24. The respondents’ and intervenors’ briefs are due on Oct. 25. After briefing, the court will issue a decision.
WASHINGTON, D.C. — On Sunday, Oct. 16, 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 undated mail-in ballots (ballots that are timely cast and valid but missing a date on their outer return envelopes) and incorrectly dated mail-in ballots (ballots that are timely cast and valid but have an incorrect date on their outer return envelopes). This lawsuit comes 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. However, the Pennsylvania Department of State immediately clarified that this decision 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.” This statement is consistent with the Department of State’s latest mail-in ballot guidance. Despite this, Republicans are suing to ask that timely cast mail-in ballots with a mistake as small as a missing or incorrect date next to the signature on the envelope are not counted — a challenge which is indicative of and consistent with the Republican position to not allow validly cast ballots to count.
In their petition, the Republicans allege that counting mail-in ballots with incorrect or missing dates poses a “threat” of “an irreparable dilution of their votes” and request that the court order the county boards to “segregate any undated or incorrectly dated ballots received for the 2022 general election.” Notably, the Department of State also states in its guidance to count wrongly dated ballots. The petitioners allege that the acting secretary’s guidance violates Pennsylvania law. Additionally, the petitioners invoke the radical independent state legislature theory, alleging that only the Pennsylvania Legislature and “not any other organ of state government” has the “‘authority to regulate election[s]’” to argue that the secretary’s guidance is unlawful.
If this lawsuit sounds familiar, that is because this challenge is not the first time undated mail-in ballots have been the focus of Republican litigation. After the 2022 primary election, Republican candidate for U.S. Senate David McCormick (R) sued to have undated mail-in ballots counted. The Pennsylvania Commonwealth Court granted McCormick’s request and ordered counties to count the undated ballots, but maintain separate results — one with undated ballots included and one without. Then, in July, three counties in Pennsylvania refused to certify vote totals including undated mail-in ballots. After the secretary sued the counties, the Pennsylvania Commonwealth Court again ruled that the counties must certify their results with all lawfully cast ballots, including undated mail-in ballots. Republicans filed this lawsuit despite the fact that mail-in ballots have already been sent out to voters and this issue has been litigated before.
Moreover, according to a recent report on the cost of voting in the United States, Pennsylvania ranks 32nd for voting access. Unfortunately, this lawsuit is part of a larger theme of Republican and conservative-sponsored lawsuits to upend the mail-in voting process in Pennsylvania, where “[a]n overwhelming majority of voters requesting mail-in ballots are Democrats.” According to the Associated Press, “[a]s of Friday, nearly 1.2 million voters had applied for a mai[l]-in ballot, with applications from registered Democrats outnumbering Republicans by an almost 4-to-1 ratio. Throwing out undated ballots would theoretically ensure that more Democratic ballots are tossed out, helping Republican candidates.” This latest challenge makes it abundantly clear that Republicans will stop at nothing to disrupt the mail-in voting process and disenfranchise voters across Pennsylvania and the country.