WASHINGTON, D.C. — On Friday, Nov. 4, a coalition of voting rights groups — the Pennsylvania State Conference of the NAACP, League of Women Voters of Pennsylvania, Philadelphians Organized to Witness, Empower and Rebuild, Common Cause Pennsylvania, Black Political Empowerment Project and Make the Road Pennsylvania — 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 envelope) 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 the 2022 midterm elections. 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. 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 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 and other GOP groups filed a lawsuit asserting that counties cannot count undated or wrongly dated mail-in ballots under Pennsylvania law.
On Tuesday, 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 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, voting rights groups filed this lawsuit in federal court seeking to ensure that voters are not disenfranchised “because of a trivial paperwork error.” The plaintiffs argue that the date requirement is immaterial because “a ballot’s timeliness under Pennsylvania law is determined by when it was received and stamped by the county board of elections” and “the date and time at which mail ballots are returned is objectively verifiable—regardless of what, if any, date the voter wrote on the return envelope.” The plaintiffs request that counties be prevented from rejecting timely cast mail-in ballots with a missing or incorrect date. 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 Tuesday deadline and over a million voters — roughly 700,000 of which are Democrats — have already returned their ballots.