Voters, Fetterman Campaign, DSCC and DCCC Sue Over Mail-in Ballots in Pennsylvania
WASHINGTON, D.C. — On Monday, Nov. 7, Pennsylvania voters, Fetterman for PA (the U.S. Senate campaign for John Fetterman (D), the state’s current lieutenant governor), the Democratic Senatorial Campaign Committee (DSCC) and the Democratic Congressional Campaign Committee (DCCC) filed a federal lawsuit challenging Pennsylvania’s plan to not count undated mail-in ballots (ballots that are missing a handwritten date next to the voter declaration signature on the outer ballot 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 the upcoming 2022 midterm elections. In Pennsylvania, there is a slight distinction between absentee and mail-in ballots, but we will use “mail-in ballots” to refer to both types of ballots. The plaintiffs allege that Pennsylvania’s plan to not count these valid and timely cast ballots that either fail to include a date or bear an incorrect date violates the Materiality Provision of the Civil Rights Act — which prohibits denying the right to vote for reasons that are unrelated to a voter’s eligibility — as well as the First and 14th Amendments of the U.S. Constitution by placing an undue burden on the right to vote. The plaintiffs ask the court to prohibit Pennsylvania election officials from rejecting undated or wrongly dated mail-in ballots.
This lawsuit comes after a series of Republican challenges to counting undated and/or wrongly dated mail-in ballots filed this year. In October, the GOP saw another opening to challenge these ballots after the U.S. Supreme Court vacated (meaning voided) a federal appellate court’s decision that had previously required Pennsylvania counties to include undated mail-in ballots that were timely and valid in election totals. Although the Supreme Court’s action did not have any tangible or immediate effect on the status quo in Pennsylvania, and state court decisions and guidance reiterated that undated mail-in ballots must be counted, the Republican National Committee (RNC) and other GOP groups filed a lawsuit asserting that counties cannot count undated or wrongly dated mail-in ballots under Pennsylvania law.
On Nov. 1, the Pennsylvania Supreme Court agreed with the Republican groups, ruling that counties cannot count undated or wrongly dated mail-in ballots in this year’s midterm elections and ordering 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. Despite this deadlock, the court ruled that counting these ballots would violate state law and thus directed counties not to count them.
Today, voters, the Fetterman campaign, the DSCC and the DCCC filed this lawsuit to ensure that Pennsylvanians are not disenfranchised for a “trivial procedural formality that functions only to disenfranchise eligible voters seeking to vote.” The voters in the lawsuit include a veteran who “is undergoing care for a condition that has made her blind and, as a result, she will be unable to cast an in-person ballot” and two other voters whose ballots for the 2022 elections were undated and therefore will not be counted. The plaintiffs argue that the date requirement is immaterial because state law “determines voter eligibility based on the date of the election—rather than the date of marking the ballot—the Date Instruction provides no information about whether a voter is qualified” and not counting mail-in ballots solely because of the date requirement violates the Civil Rights Act and First and 14th Amendments.
Pennsylvania will begin counting mail-in ballots on Election Day, Tuesday, Nov. 8. According to the Pennsylvania Department of State, over 1.4 million voters requested mail-in ballots by the state’s Nov. 1 deadline and over a million voters — roughly 700,000 of whom are Democrats — have already returned their ballots. This is the second federal lawsuit to be filed over this issue after voting rights groups sued on Friday, Nov. 4.