Votebeat

Pennsylvania’s mail ballot dating rules have been in flux for years. Here’s what you need to know.

2026-05-08T09:00:00+00:00

Votebeat is a nonprofit news organization reporting on voting access and election administration across the U.S. Sign up for Votebeat Pennsylvania’s free newsletter here.

As some Pennsylvania voters prepare to vote by mail in this month’s primary election, they could be forgiven for not knowing what they need to do with the date line on their ballot envelope.

Court rulings have flip-flopped on the requirement several times since Act 77, the law that implemented no-excuse mail voting, went into effect in 2020. For some elections since then, counties had to reject mail ballots that lacked a proper date; for others, they didn’t.

The rule has resulted in thousands of otherwise qualified ballots being rejected and left many voters confused about what they need to do to have their votes counted.

Here’s what voters need to know for the May 19 primary.

What do I need to do with the date line for this election?

Don’t write your birthday. Don’t write the day you registered to vote.

Fill out the current date in the date line just below the signature space, which also needs to be filled out.

During elections when counties were required to reject ballots for missing or improper dates, writing birthdays was among the most common mistakes voters made.

In 2023, the Pennsylvania Department of State made changes to the ballot return envelope to reduce the number of ballots rejected for date issues. The department prefilled the year portion of the date line, which did indeed lead to fewer errors.

Will my ballot be rejected if it has an improper date?

Currently, counties cannot reject mail ballots for lacking a proper date. The Pennsylvania Commonwealth Court ruled in 2024 that it was unconstitutional for counties to reject ballots for missing or improper dates. Last year, the 3rd U.S. Circuit Court of Appeals also upheld a separate ruling that said the requirement to date the return envelope violated voters’ First Amendment rights.

That could change, however, as both the state case and federal case are being appealed. Election officials still recommend that voters date their return envelope.

Why does the envelope need a date in the first place?

Simply put, because the law says it does.

When lawmakers passed Act 77 in 2019, it said voters must “date and sign the declaration” on the return envelope. The declaration affirms that the voter is qualified to vote and that they have not cast another ballot.

The language was carried over from the state’s existing law governing absentee voting, which was written before counties used technology to track ballots and voters.

Why has this been so contentious?

Some voting-rights advocates, such as Common Cause, the NAACP, and the ACLU, believe the dating requirement does not serve any legitimate purpose and has disenfranchised otherwise eligible voters.

They argue that the state’s ballot tracking system records when counties send a ballot out and when they receive it back, meaning the date isn’t needed to determine if the voter cast the ballot within the time allowed for the election. Proponents of keeping the date argue the written date could serve as a backup check if the tracking system fails, but election officials also timestamp ballot envelopes when they are received back from the voter, which can serve as a backup as well.

Another argument for keeping the date is that it could help in detecting voter fraud, such as if someone requests a ballot, dies, and another person casts the ballot. This happened in Lancaster County in 2022, but opponents of the date requirement point out that, even if the date line had not been filled out in that case, there were other factors that would have detected the fraud.

Carter Walker is a reporter for Votebeat in partnership with Spotlight PA. Contact Carter at cwalker@votebeat.org.

What Pennsylvania voters need to know ahead of November’s election

2025-10-23T16:42:25+00:00

Votebeat is a nonprofit news organization reporting on voting access and election administration across the U.S. Sign up for Votebeat Pennsylvania’s free newsletter here.

Pennsylvanians will head to the polls next month to vote in some distinctive contests.

The highest profile race this year is for three state Supreme Court justices hoping to remain on the bench. Also on the ballot, representing the smallest possible constituency, are candidates seeking to be precinct-level election workers.

And if you haven’t voted by mail since the 2024 presidential election, there are some changes that could affect you.

Here is what you need to know ahead of the Nov. 4 municipal election:

What are judicial retention elections?

In Pennsylvania, judges and justices on the state’s appellate courts are elected for 10-year terms. As their terms come to an end, jurists run for retention, which means another 10-year term.

When they first run for office, judges run in the primary and declare a political party. But when they run for retention, they’re not running against any other candidate, and no party affiliation appears next to their name on the ballot.

Voters will be asked to simply vote “yes” or “no” on whether the judges and justices should serve another term.

Yes-or-no retention races are the most common way state Supreme Court judges run for additional terms, but Pennsylvania’s combination of initially partisan elections followed by nonpartisan retention races is less common.

Retention campaigns in Pennsylvania are almost always successful. Only one state appellate judge, Supreme Court Justice Russell Nigro, has ever lost a retention race.

If a judge loses a retention vote, the governor, Josh Shapiro, a Democrat, would appoint a replacement to fill in until the next municipal election in 2027. The appointment is subject to confirmation by the GOP-controlled state Senate.

Who are the judges up for retention?

Five statewide appellate court judges are up for retention this year, including three state Supreme Court justices.

Commonwealth Court Judge Michael Wojcik is running for another term, as is Superior Court Judge Alice Dubow, although that court does not handle election law issues.

On the state Supreme Court, Christine Donohue, Kevin Dougherty, and David Wecht will be on the ballot.

All five initially ran as Democrats, and the Pennsylvania Bar Association has recommended all five for retention.

Republicans are vigorously campaigning against retaining the judges, especially the state Supreme Court justices, and have repeatedly highlighted their rulings on election law cases. The justices have ruled on everything from gerrymandered congressional maps to rules surrounding mail voting. A key case on mail ballots is currently pending before them, and more election law cases are sure to arise during the 2026 midterm elections.

What are the races for election judge and inspector?

Voters will see a race on their November ballot that is uniquely Pennsylvanian: an election to choose their poll workers, the people who run their voting precincts.

Pennsylvanians have been voting on poll workers since at least 1799.

Some New England states have elected town officials who oversee polling places as part of their job. But according to a report from the U.S. Election Assistance Commission, Pennsylvania is the only state that directly elects officials whose sole responsibility is overseeing elections at the precinct level.

On the ballot are two races for three positions total. Voters will select one candidate for judge of elections and one for inspector of elections.

During the primary, Democratic and Republican voters in each precinct are supposed to nominate one candidate for judge, and each party nominates one candidate for inspector. In the fall, the election judge candidate with the most votes assumes the position. Of the two inspector candidates, the one who gets the most votes becomes the majority inspector, and the second-place candidate becomes the minority one.

The candidate spaces are often blank on the November ballot, since many races go without candidates in the primary. Poll workers are often elected with just a few write-in votes in the November election. If no one is elected, county officials will appoint poll workers.

How will mail voting be different this year?

Since the 2024 presidential election, there have been two important court rulings on mail voting.

First, the 3rd U.S. Circuit Court of Appeals ruled in August that it is unconstitutional for Pennsylvania counties to reject mail ballots on the grounds that the return envelopes are undated or misdated. Counties have rejected ballots in the past for these reasons, and legal fights over the issue have gone on for years.

However, the issue is not yet settled. The case could still be appealed to the U.S. Supreme Court, and another case on the same issue is currently pending before the state Supreme Court. Election officials recommend always signing and dating your mail ballot return envelope, regardless of what recent court rulings say.

Last month, the state Supreme Court ruled that if counties know a mail ballot has a disqualifying error, such as lacking a signature on the return envelope, they have to notify voters before rejecting the ballots. These notifications will typically be sent to the email address the voter used when applying for a mail ballot.

The last day to request a mail ballot is Oct. 28

Carter Walker is a reporter for Votebeat in partnership with Spotlight PA. Contact Carter at cwalker@votebeat.org.

Counties must notify voters if their mail ballot was rejected, Pennsylvania Supreme Court rules

2025-09-29T13:52:53+00:00

Votebeat is a nonprofit news organization reporting on voting access and election administration across the U.S. Sign up for Votebeat Pennsylvania’s free newsletter here.

Voters must be notified if election officials are going to reject their mail ballots because of an error such as an incorrect date or missing signature on the return envelope, the Pennsylvania Supreme Court ruled Friday.

In a 4-3 decision, the court ruled that Washington County erred in not notifying 2024 presidential primary voters that their mail ballots would be rejected, leaving them unaware their votes would go uncounted.

“We must interpret the Election Code and its statutory procedures in a way that ‘favors the fundamental right to vote and enfranchises, rather than disenfranchises, the electorate,’ Justice Kevin Dougherty said, writing for the majority. “Reading the Code as allowing county boards to withhold readily available information from voters does not serve that goal.”

The decision, in combination with another ruling last year from the high court, means that voters across the state will have at least some rights to be notified and have some recourse if their mail ballots are at risk of being rejected because of mistakes.

Before the 2024 primary, the Republican majority on Washington County’s board of elections opted not to notify voters of mistakes with their mail ballots that would cause their votes to be disqualified, such as a missing date or signature, or being returned without a secrecy envelope. That left voters with no way to know about those errors or fix them to ensure their vote could be counted.

The Pennsylvania Supreme Court had previously ruled that state law doesn’t require counties to give voters a chance to fix errors with their ballots, but it also doesn’t prohibit the practice either. As a result, many counties adopted such a process to tell voters of their mistakes and give them another chance, referred to as “notice and cure.”

More than half of counties do this, according to a Votebeat and Spotlight PA analysis.

During the primary, Washington County gave voters no warning if their ballot had an error that would result in it being rejected, even though it acknowledged receiving them. When Washington County received a mail ballot back from a voter, it used only generic codes in the state’s ballot tracking system to indicate the ballot had been received, rather than more specific codes that could indicate whether there is a problem that prevents the ballot from being counted. These codes generate distinct emails to voters, and the more specific codes would have generated emails that informed voters their ballots were at risk of rejection.

Ultimately, Washington County rejected 259 mail ballots during the primary for issues with a signature or date on the outer envelope, or for being returned without an inner secrecy envelope. That was roughly 2.2% of mail ballots returned to the county.

Statewide, roughly 8,500 ballots in the 2024 primary, or 1.22% of those returned, were rejected for one or more of those errors, according to an analysis of Pennsylvania Department of State data.

Some counties, including Allegheny, send the defective ballot back to the voter with instructions on how to fix the error, as well as a new return envelope. That method enabled voters there to fix nearly 62% of the defective mail ballots in the spring primary. Chester County tells voters to come into the elections office with ID and fix it in person. Delaware County cancels the defective ballot and issues a new one.

The ACLU and Public Interest Law Center sued Washington County — on behalf of seven voters, the local NAACP branch, and the Center for Coalfield Justice — arguing that by not informing the voters that their ballots were at risk of rejection, the Washington County had violated the voters’ constitutional due process rights and denied them the opportunity to challenge the decision or cast provisional ballots.

Washington County Court of Common Pleas Judge Brandon Neuman agreed with the organizations, writing that under the state Election Code, voters have a right to challenge the decision by a county board of elections to reject their ballot, and to cast a provisional ballot. If they don’t know their ballot was rejected, he wrote, they can’t exercise those rights.

He ordered the county to change its process for what codes it uses when receiving ballots, so voters better understand that their ballot is at risk of rejection.

Washington County appealed the decision to Commonwealth Court, joined by state and national Republican groups that had intervened in the case. Last September, Commonwealth Court upheld the lower court ruling 2-1 that the county had to provide notice so that the voters’ due process rights could be maintained.

Shortly before the 2024 presidential election, the state Supreme Court also ruled that if a county rejects a voter’s mail ballot, they must count a valid provisional ballot if the voter casts one on Election Day.

In combination, the two rulings mean some version of “notice and cure” should exist in most counties in the state.

Michael Morse, a University of Pennsylvania law professor who is researching the effect of different “notice and cure” policies, said the court’s ruling was “promising but limited.” He noted that the court’s opinion applies only to counties that choose to segregate mail ballots to identify defects ahead of Election Day.

The case was one of the last remaining major pieces of litigation stemming from Act 77, the 2020 law that enacted no-excuse mail-in voting in Pennsylvania.

Another case pending before the state Supreme Court, which has yet to be decided on, deals with whether ballots should be rejected if voters fail to write a date on the ballot return envelope.

Correction, Oct. 2, 11 a.m.: A previous version of this story incorrectly stated the scope of the court’s recent ruling. Some counties may not have a de facto “notice and cure” policy as a result of the two court rulings if they don’t segregate mail ballots to identify errors ahead of Election Day.

Carter Walker is a reporter for Votebeat in partnership with Spotlight PA. Contact Carter at cwalker@votebeat.org.

Fight over Pennsylvania’s mail-ballot date requirement approaches the endgame

2025-09-22T09:00:00+00:00

Votebeat is a nonprofit news organization reporting on voting access and election administration across the U.S. Sign up for Votebeat Pennsylvania’s free newsletter here.

When Pennsylvania’s highest court gathered in Philadelphia on Sept. 10 to hear arguments on whether voters must write the date on their mail ballot return envelopes, a lawyer for Republican groups told justices that eliminating the requirement could prompt a flood of election law challenges.

It’s probably a little late to worry about that.

Election litigation hit unprecedented heights across the country during the 2024 election cycle, according to an expert who tracks it, a sign that courts are increasingly being asked to settle partisan battles over election administration.

And Pennsylvania’s mail ballot dating requirement could very well be the most litigated of all.

Lawmakers adopted the requirement that voters sign and date the outside mail ballot envelope as part of a larger election law, Act 77, in 2019. The legal disputes center on whether the requirement can be enforced and whether it serves any practical purpose.

Since Act 77 was enacted, courts have made at least nine different rulings that have switched the way counties must deal with undated or misdated mail ballots, and the rules voters must follow. The back-and-forth decisions have flummoxed voters, frustrated election administrators, and kept taxpayers perpetually on the hook for litigation bills.

“The deluge of cases and the deluge of decisions, it gets confusing,” said Andrew McGinley, vice president of external affairs at the Committee of Seventy, a Philadelphia-based government watchdog group.

At separate points in separate cases brought under differing legal rationales, state appellate courts have said undated ballots should be counted, and said the requirement couldn’t be enforced. Federal courts have said it violated federal law, only to have those decisions vacated on appeal. The U.S. Supreme Court has declined to take up the issue in one case, while invalidating rulings in another.

It’s all over a requirement which both judges and election officials have said serves no functional purpose in running elections. But election experts and attorneys hope the saga is nearing an end as the state Supreme Court hears one ongoing case, and a parallel proceeding makes its way toward the U.S. Supreme Court.

Conflicting court decisions have roiled elections

As the court cases have dragged on, state and local election officials have redesigned Pennsylvania’s mail ballot envelope and educated voters about the dating requirement. Those steps have helped reduce the percentage of mail ballots rejected for lacking a proper date — as well as missing signatures or secrecy envelopes — by more than half, from 1.31% in the 2022 general election to just 0.57% during last year’s higher-turnout presidential election.

But that hasn’t settled the legal dispute.

Opponents of the ballot dating requirement say courts must strike it down to avoid allowing the state to impose hurdles on voters without good cause. Those backing the requirement say it does have a purpose, such as detecting fraud or as the record of last resort to document when the ballot was cast.

Since the requirement passed, thousands of voters have had their ballots set aside and their votes rejected because they forgot to write that date, even though they were otherwise eligible.

On at least three occasions, decisions have dropped just before or after voters cast their ballots, changing the rules during an election.

“Obviously it’s not helpful for us to have this lack of clarity on what the law is going to be for every election,” said Thad Hall, elections director for Mercer County. “In many cases when they’ve switched the court decision, it has come down right before we’re canvassing, right when we’re canvassing, and it makes it difficult for us in how we handle things.”

In late November 2023, a federal district court in western Pennsylvania ruled that the requirement violated a provision of the Civil Rights Act of 1964, which says a voter’s ballot cannot be rejected for reasons that are immaterial to the voter’s eligibility. That ruling came right when counties were in the middle of finalizing their vote totals.

Some counties included improperly dated ballots in their count for that election, some didn’t, and the decision reshaped the outcome of at least one local race.

In the eight elections since 2020 where an order to not count the ballots has been in effect, tens of thousands ballots have been rejected for lacking a date, according to Votebeat and Spotlight PA analysis, data from lawsuits, and figures from the Pennsylvania Department of State. A spokesperson for the Pennsylvania Department of State said a complete figure for ballots rejected in the five years the law has been in effect is unavailable due to how data was tracked in the earlier years of no-excuse mail voting.

At least some of that is because the back-and-forth has confused voters, the current case before the state Supreme Court suggests.

One of the plaintiffs in that case, Susan Kinniry, forgot to date her return envelope for a September 2024 special election. She received an email saying her ballot would not be counted, but didn’t attempt to fix the error, because three days after she got the email, the state’s Commonwealth Court ruled that rejecting ballots for lacking a date violated the state’s constitution.

By that standard, Kinniry’s ballot would have been counted. But then, just before the election, the state Supreme Court stayed the Commonwealth Court’s ruling, meaning it ultimately didn’t count after all.

What purpose does the date on a ballot envelope serve?

Kinniry and the American Civil Liberties Union of Pennsylvania, which represented her alongside The Public Interest Law Center, argue that disqualifying the ballot for lacking a date violates the “free and equal elections” clause of the state constitution. That clause says that “no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.”

The ACLU, along with lawyers for the state Democratic Party and the city of Philadelphia, say the requirement violates the clause because it burdens the voter without furthering a compelling government interest. They say, as they have in other cases and as the federal courts have determined in previous rulings, that the voter’s handwritten date plays no role in election administration.

That’s because when a mail ballot is sent from a county or its vendor to a voter, the barcode on the envelope is scanned and the date on which it was sent is recorded in the state’s election management system, known as SURE. The date is also recorded when a ballot is returned to the county, and workers physically stamp the envelope with a return date. The handwritten date plays no role in determining whether the ballot was received in time to be counted.

Lawyers representing Republican Party groups and the state’s attorney general, arguing in favor of keeping the requirement, said the date can serve other purposes, including as a backstop if the SURE system fails.

But Ben Fabens-Lassen, a lawyer for Philadelphia’s Board of Commissioners, said in that “unlikely instance,” there is “simply no way” election officials would use the handwritten date, since they have the physical stamp as a backup.

John Gore, the lawyer representing Republican Party committees in both the federal and state cases, also said the date could help officials prove fraud. He pointed to a fraud case from Lancaster County where a woman returned her deceased mother’s mail ballot and wrote a date on it that was after the woman had died. That helped prosecutors show the ballot had been cast fraudulently, Gore argued.

But Daniel Volchok, who represented the Pennsylvania Democratic Party, countered that the date was just one of six elements detectives had used in that case to make that determination, and removing it wouldn’t have changed anything.

Justices were clearly wrestling with the same questions when they heard the case earlier this month.

“If there is no purpose in a requirement, I struggle with how an election can be ‘free’ if there is a trick,” Chief Justice Debra Todd said. Justice Christine Donohue said it was “uniquely without purpose.”

On the other hand, Justice Kevin Brobson suggested the date shows when voters signed the attestation on the return envelope, showing exactly when they attested that certain facts are true.

A rising tide of litigation

Rick Hasen, a professor at UCLA Law School who tracks election litigation, says the two-year federal election cycle of 2023-24 saw more election lawsuits than any other period since the beginning of his database, in 1996.

“Political operatives recognized that in very close elections, the rules of the game matter a lot,” he said.

Hasen said while it’s rare that litigating over technical issues in election law can change the outcome of a race, it’s not impossible.

For example, in 2008, Al Franken, a Democrat, initially lost a bid for a Minnesota U.S. Senate seat to incumbent Republican Norm Coleman by a few hundred votes. But the close margin triggered a legally required recount, during which attorneys for Franken argued that some absentee ballots had been improperly rejected and should be counted. Franken ultimately won.

Hasen said there have always been cases like that — post-election disputes in close races over which ballots to count — but part of what sets the current moment apart is that we are now also seeing pre-election disputes over what ballots should be counted.

Derek Muller, an election law professor at Notre Dame Law School, has pointed to another contributing factor: a 2014 federal campaign finance change allowed fundraising specifically for election litigation. Hasen said the change created an incentive to pursue more cases, “because otherwise you’re kind of leaving money on the table.”

Even against that backdrop, Hasen said the amount of litigation over Pennsylvania’s mail ballot dating requirement stands out. Factors that could be fueling it, he said, include the commonwealth’s status as a swing state, a perception that less restrictive mail ballot rules help Democrats and hurt Republicans, and a general sense that it’s unfair to reject a ballot that election officials know was received on time and would otherwise be counted.

“If Pennsylvania were not so polarized, or if one party controlled the legislature and the governor’s office, then you could well see a legislative fix for this problem,” he said.

Is the end near?

Either the case currently before the Pennsylvania Supreme Court, or another one pending in the federal courts could theoretically settle the question for good.

Adam Bonin, a Philadelphia-based Democratic election lawyer, is representing a voter from central Pennsylvania, Bette Eakin, who argued that rejecting mail ballots for issues with the date on the outer envelope violates voters’ First Amendment rights, since voting is considered an expression of free speech.

A federal district court judge agreed with that argument in March, and a panel of the 3rd U.S. Circuit Court of Appeals upheld it in August.

The Republican National Committee is asking the full bench of 3rd Circuit judges to rehear the case. At the state Supreme Court hearing, Gore suggested the 3rd Circuit’s ruling could ultimately be appealed to the U.S. Supreme Court.

And if the state Supreme Court rules for the ACLU, Republicans could in theory appeal that to the U.S. Supreme Court, too, if they believe the state court overstepped.

But other than that, “there’s not too many steps left,” Bonin said.

“I’ve got to believe, after three to four years of litigating this same issue in different iterations, we’re finally going to get to a place where this disenfranchisement trap goes away,” said Stephen Loney, the ACLU’s senior supervising attorney who argued the case on Sept. 10

Of course, even if the courts finally manage to end the back-and-forth on the dating requirement, there are plenty of other election cases still pending in Pennsylvania.

“There’s still outstanding issues about ‘notice and cure,’ pre-canvassing, all these pieces,” noted McGinley, of the Committee of Seventy, “and that requires the legislature to act to clarify a lot of these different issues that have come up as a result of Act 77.”

And still more court cases are certain to follow.

Carter Walker is a reporter for Votebeat in partnership with Spotlight PA. Contact Carter at cwalker@votebeat.org.

Clarification, Sept. 23: This article was updated to reflect that The Public Interest Law Center is co-counsel alongside the ACLU in the state Supreme Court case.

Pennsylvania counties can’t reject mail ballots over missing date, federal appeals court rules

2025-08-26T21:45:53+00:00

Votebeat is a nonprofit news organization reporting on voting access and election administration across the U.S. Sign up for Votebeat Pennsylvania’s free newsletter here.

What happened?

It is unconstitutional for Pennsylvania counties to reject mail ballots on the grounds that the envelopes are undated or misdated, a three-judge panel of the 3rd U.S. Circuit Court of Appeals ruled Monday in a long-running legal battle over the state’s mail ballot dating requirement.

The judges found the dating requirement to be a minimal burden on voters, but said there was not a sufficient state interest to justify enforcing it. “Weighing the burden that practice imposes on Pennsylvanians’ constitutional right to vote against the State’s interest in the practice, the balance of the scales leads us to hold that it does not comply with our Constitution,” the judges concluded unanimously, upholding a decision earlier this year from a federal district court judge.

What’s the dispute?

As Votebeat has previously reported, Act 77, the 2019 law that created no-excuse mail voting in Pennsylvania, says a person must sign and date the mail ballot return envelope for their vote to be counted, but election officials have said this date is not used for determining whether the ballot was received by Election Day.

Since then, some Pennsylvania counties have rejected thousands of ballots because the envelopes lacked a proper date, and counties have had varying policies about whether to notify voters and give them a chance to correct the error.

The validity of the dating requirement has been disputed for years, with state and federal courts going back and forth.

Who are the plaintiffs and what are they seeking?

An Erie County voter whose ballot was rejected in 2022 joined with Democratic Party groups and advocacy groups, including the American Federation of Teachers, Common Cause Pennsylvania, and the League of Women Voters of Pennsylvania, to challenge the enforcement of the dating requirement across Pennsylvania.

The Republican National Committee, the state Republican Party, and the Republican Party’s U.S. House campaign arm filed the latest appeal to defend the state’s dating requirement.

What happens now?

The ruling could be appealed to the U.S. Supreme Court.

Read more Votebeat coverage of the legal fight over Pennsylvania mail ballots:

Pennsylvania can’t reject improperly dated ballots, federal court rules, March 31, 2025
Pennsylvania Supreme Court to hear latest case over undated mail ballots Jan. 17, 2025
Pennsylvania Supreme Court stops 3 counties from counting undated, incorrectly dated ballots, Nov. 18, 2024
Philadelphia must count undated and misdated mail ballots from September election, Pa. court rules, Oct. 30, 2024,
Pennsylvania Supreme Court restores date requirement for mail ballots, voiding lower-court ruling, Sept. 13, 2024
Mail ballots can’t be rejected over improper date on envelope, Pennsylvania court rules, Aug. 30, 2024
Pennsylvania’s rule on dating mail ballots faces new challenge in state court, May 29, 2024

Carrie Levine is Votebeat’s editor-in-chief and is based in Washington, D.C. Contact Carrie at clevine@votebeat.org.

Pennsylvania can’t reject improperly dated ballots, federal court rules

2025-03-31T22:39:27+00:00

Votebeat is a nonprofit news organization reporting on voting access and election administration across the U.S. Sign up for Votebeat Pennsylvania’s free newsletter here.

What happened?

Pennsylvania counties can’t reject a voter’s mail ballot solely because they forgot to put the date on the return envelope or put a wrong date on it, a federal judge wrote Monday in a ruling that likely applies to the upcoming primary. The ruling is the latest — and likely not the last — in a long-running legal battle over enforcing the date requirement that has bounced around state and federal courts.

U.S. District Judge Susan Baxter of the Western District of Pennsylvania ruled Monday that rejecting mail ballots for issues with the date on the outer envelope violates voters’ First Amendment rights, since voting is considered an expression of free speech.

Misdated mail ballots are ones where a voter writes a date on the envelope that is outside of the range between when the county can first send the ballot and the day of the election.

What’s the dispute?

Act 77, the 2019 law that created no-excuse mail voting in Pennsylvania, says a person must sign and date the mail ballot return envelope for their vote to be counted, but election officials have said this date is not used for determining whether the ballot was received by Election Day.

Since then, Pennsylvania counties have rejected thousands of ballots because the envelopes lacked a proper date. The validity of the dating requirement has been disputed for years, with courts going back and forth. This case argued that rejecting ballots for lacking a proper date created a burden on the voter which was not justified by a compelling state interest, an argument Baxter relied on in her ruling.

Baxter, a Trump appointee, said that while dating the envelope was only a “minimal” burden, she determined that the government hadn’t asserted any legitimate reason why it should be imposed on voters. While the Republican National Committee argued it could be used to detect fraud, Baxter noted the only case it cited as evidence was detected through other means.

Another case on the issue is pending in Pennsylvania Supreme Court. Voters represented by the American Civil Liberties Union of Pennsylvania and the Public Interest Law Center argue the dating requirement violates the Free and Equal Elections Clause of the state constitution, which bars any interference with “the free exercise of the right of suffrage.”

Who are the plaintiffs?

Bette Eakin is a voter from Erie County whose 2022 general election mail ballot was rejected for lacking a date. She, along with national Democratic Party groups and the campaign of U.S. Sen. John Fetterman, sued all 67 counties in the state for rejecting improperly dated ballots. Republican groups intervened to defend the requirement.

What happens now?

The Pennsylvania Department of State and the court did not immediately say if this standard applies to the upcoming May 20 municipal primary, although a lawyer representing Eakin said it should apply. Republican groups that intervened in the case could appeal the decision to the 3rd U.S. Circuit Court of Appeals. A representative for the Republican National Committee and the Republican Party of Pennsylvania did not immediately respond to a request for comment on whether they would appeal.

Read more of Votebeat’s recent coverage of challenges to the dating requirement:

Pennsylvania Supreme Court to hear latest case over undated mail ballots Jan. 17, 2025
Pennsylvania Supreme Court stops 3 counties from counting undated, incorrectly dated ballots, Nov. 18, 2024
Philadelphia must count undated and misdated mail ballots from September election, Pa. court rules, Oct. 30, 2024,
Pennsylvania Supreme Court restores date requirement for mail ballots, voiding lower-court ruling, Sept. 13, 2024
Mail ballots can’t be rejected over improper date on envelope, Pennsylvania court rules, Aug. 30, 2024
Pennsylvania’s rule on dating mail ballots faces new challenge in state court, May 29, 2024

Pennsylvania’s varied ‘curing’ policies affect voters’ chances of getting their ballot counted

2025-02-04T11:00:01+00:00

Votebeat is a nonprofit news organization reporting on voting access and election administration across the U.S. Sign up for Votebeat Pennsylvania’s free newsletter here.

Counties that allow mail voters to fix errors that could otherwise get their ballots disqualified rejected fewer ballots during the 2024 general election, a Votebeat and Spotlight PA analysis has found.

Overall, just 0.57% of mail ballots statewide were rejected due to voter errors, such as an improper date, a missing signature on the return envelope, or failure to use the ballot secrecy envelope. That’s less than half the rejection rates of 1.22% in the primary election and 1.31% in the 2022 general election.

However, according to the analysis, the rate was even lower in counties that allow voters to fix, or “cure,” their mail ballots — just 0.49% in those counties were rejected for technical deficiencies on average, compared with 0.59% in counties where curing isn’t allowed. The numbers mean 17% fewer voters had their ballots rejected in the curing counties.

That difference highlights the disparity in the rules Pennsylvania voters face based on where they live, said Jeff Greenburg, a senior adviser on election administration for the Philadelphia-based nonprofit Committee of Seventy. He considers inconsistency the state’s prime election administration problem.

“The number one issue is that we are having a conversation about counties doing things differently,” Greenburg said.

A ruling this past October from the state Supreme Court allows all voters who make such disqualifying mistakes with their mail ballots to cast a provisional ballot on Election Day and have it counted, so long as there are no other errors.

Some counties go beyond that. Thirty-eight counties allow voters to fix errors with their mail ballots in some way — according to information gathered by Votebeat and Spotlight PA ahead of the election — though exactly how varies widely.

Allegheny County, home to Pittsburgh, is one of the counties that send the defective ballot back to the voter with instructions on how to fix the error, as well as a new return envelope. Chester County tells voters to come into the election office with their ID and fix it in person. Delaware County cancels the defective ballot and issues a new one.

Twenty-six counties do not allow any kind of second chance, and the policy in three others is unclear.

The lack of uniformity stems from ambiguity in the law that brought mail voting into the mainstream in Pennsylvania. Act 77, the 2019 law that expanded mail voting beyond absentee ballots — which required a specified reason — says voters must place their ballot in a secrecy envelope, and place that envelope in a return envelope that they must sign and date. Failure to do one of these things will prevent the county from counting the ballot.

But the law is silent on what, if anything, counties can do to help voters fix those errors, and court decisions in the years since have established that the choice is up to county election officials.

Greenburg, who served as election director in Mercer County for several years before Act 77 was implemented, said that when absentee ballots were the primary form of mail voting, curing was not an issue for most counties.

“We made efforts to contact voters to give them the opportunity if they forgot to sign or had a missing date,” he said. “I think you will find that most counties were doing something similar in that era.”

Now, as mail voting has grown exponentially with Act 77, counties have gone from having to decide how to deal with a handful of errant ballots to hundreds or potentially thousands of them. And they continue to revise their policies.

The Pennsylvania Department of State has made changes to the return envelope to try to reduce the number of flawed mail ballots counties have to deal with. A Votebeat and Spotlight PA analysis following the 2024 primary found that those changes helped reduce the number of ballots facing rejection, and further changes the department made to the date section of the envelope appear to have helped cut that number even more.

The department’s own analysis, which was verified by Votebeat and Spotlight PA, found that the state’s overall ballot rejection rate for the 2024 general election — which would include ballots rejected for being returned late or the voter failing to provide ID — was roughly 1%. That’s down from 2.4% in the primary.

Secretary of the Commonwealth Al Schmidt credited the reduction to voter education efforts and the envelope changes, and said the administration is pleased with the improved numbers.

“The Department of State will continue to work with county elections officials to ensure every eligible Pennsylvanian’s legally cast vote can be counted in 2025,” Schmidt said in a statement.

Counties have tended to view the lack of precise language in Act 77 on curing in one of two ways: either as a green light for the practice, or as a barrier.

“None of this is authorized by statute,” Indiana County Solicitor Matthew T. Budash told the county’s commissioners when they voted to adopt a curing policy ahead of the 2024 election. “But it is not prohibited, either.”

Other counties, like Snyder, take the opposite view.

“Our board has consistently taken the stance that the law does not tell us. It doesn’t say we ‘shall’ cure ballots,” county Commissioner Joe Kantz told Votebeat and Spotlight PA in October.

Other non-cure counties have argued that it gives mail voters the ability to change their initial votes, an option not provided to in-person voters.

“I don’t think that voters should be able to correct” their ballots, Bradford County Commissioner Doug McKlinko said during an October meeting where the county voted to discontinue its curing practice.

But Greenburg said counties have never given in-person voters only “one bite at the apple.” Ballot tabulation machines at polling places will reject ballots that have more candidates selected than a race allows — known as “overvotes” — and poll workers typically alert provisional-ballot voters if they forget to sign or date the envelope that goes with it.

With voters taking advantage of curing options, “they’re not saying to the county, ‘I made a mistake on the ballot, I want a new ballot,’” he said. “They made a mistake on their envelope.”

Curing policies like the one in Delaware County, where the county cancels the original mail ballot and sends out a new one, would theoretically allow voters to change their votes. Other counties allow voters to come into the office only to fix problems with the envelope such as signature or date, though this usually doesn’t give voters who forget to use the secrecy envelope a way to fix their error.

Giving mail voters some ability to fix mistakes to ensure their ballot can be accepted, as in-person voters have, is “only fair,” Greenburg said, “but we need the General Assembly to take the lead, in collaboration with election officials, so that we are doing this uniformly across the commonwealth.”

Carter Walker is a reporter for Votebeat in partnership with Spotlight PA. Contact Carter at cwalker@votebeat.org.

Pennsylvania Supreme Court to hear latest case over undated mail ballots

2025-01-17T19:55:25+00:00

Votebeat is a nonprofit news organization reporting on voting access and election administration across the U.S. Sign up for Votebeat Pennsylvania’s free newsletter here.

What happened? The Pennsylvania Supreme Court said Friday that it will take up a case, Baxter v. Philadelphia, on whether requiring voters to date mail ballot envelopes violates the state constitution.

What’s the dispute? Pennsylvania’s 2019 no-excuse mail voting law, Act 77, says mail voters must sign and date their ballot return envelope for their vote to be counted. Thousands of voters have had their ballots rejected in every election because the envelopes lacked a proper date. The validity of the dating requirement has been disputed for years, but the issue in the current case is whether it violates the “free and equal” election clause of the Pennsylvania Constitution, which bars any interference with “the free exercise of the right of suffrage.” Voting rights advocates argue that because election officials do not use the handwritten date to determine a ballot’s eligibility, it represents an unnecessary — and unconstitutional — burden that interferes with voting.

Who are the plaintiffs? The plaintiffs are Brian Baxter and Susan Kinniry, two Philadelphia voters whose mail ballots in September 2024 special elections were rejected for lacking a date. They’re represented by the American Civil Liberties Union of Pennsylvania and the Public Interest Law Center. On the other side are Republican groups that have sought to defend the requirement. Other groups have also intervened on either side, including the Pennsylvania Department of State, the state Democratic Party, and state House and Senate Republicans.

What are they asking for? They initially asked a local court in Philadelphia to declare that the Philadelphia Board of Elections had violated their constitutional rights by deciding not to count the ballots. The court agreed, as did the Commonwealth Court, an appellate court. Republican groups challenged the decision to the state Supreme Court.

What happens now? The Supreme Court is taking up the case and has directed the plaintiffs to notify the state attorney general of the Republicans’ challenge. Republican Dave Sunday, who will be sworn in soon as attorney general, can choose whether to intervene in the case. The court may then order written or oral arguments on the case.

Read more of Votebeat’s recent coverage of challenges to the dating requirement:

Pennsylvania Supreme Court stops 3 counties from counting undated, incorrectly dated ballots, Nov. 18, 2024
Philadelphia must count undated and misdated mail ballots from September election, Pa. court rules, Oct. 30, 2024
Pennsylvania Supreme Court restores date requirement for mail ballots, voiding lower-court ruling, Sept. 13, 2024
Mail ballots can’t be rejected over improper date on envelope, Pennsylvania court rules, Aug. 30, 2024
Pennsylvania’s rule on dating mail ballots faces new challenge in state court, May 29, 2024

Carter Walker is a reporter for Votebeat in partnership with Spotlight PA. Contact Carter at cwalker@votebeat.org.

Pennsylvania Supreme Court stops 3 counties from counting undated, incorrectly dated ballots

2024-11-18T22:53:50+00:00

Votebeat is a nonprofit news organization reporting on voting access and election administration across the U.S. Sign up for Votebeat Pennsylvania’s free newsletter here.

Pennsylvania’s highest court has directed three counties not to include undated or misdated mail ballots in their November election results.

Such ballots have been the subject of years of litigation in various courts, and became an issue again after Bucks, Montgomery, and Philadelphia counties moved to count them for the Nov. 5 election.

These are the ballots where a voter has neglected to write the date on the return envelope or written something incorrect, like their birthday. There are roughly 1,500 or so ballots in play in the three counties, likely not enough to change the outcome of the U.S. Senate race that is spurring the litigation.

Pennsylvania calls off recount in Senate race after Casey concedes to McCormick

Still, the legal action highlights an unsettled area of policy that has long frustrated people in charge of running elections in Pennsylvania.

Attorneys for the counties had argued that officials there had constitutional concerns about rejecting the improperly dated ballots.

They pointed to Commonwealth Court, which has ruled multiple times this year that rejecting mail ballots solely for an improper date violates the state constitution’s free and equal elections clause.

On Monday, a 4-3 majority of the Pennsylvania Supreme Court told the three counties not to include undated and misdated ballots in their counts. It clarified that the Commonwealth Court rulings do not apply to the Nov. 5 election.

Here’s how to understand the background leading up to the decision:

What exactly is an undated mail ballot?

A mail ballot in Pennsylvania comes with two envelopes: an inner secrecy envelope and an outer return envelope.

There is a field on the return envelope for the voter to write “today’s date” — meaning, the date they fill it out.

An undated ballot is one where the voter left that field blank. A “misdated” ballot is generally understood to be one on which a voter wrote a date outside a range described in a Pennsylvania Supreme Court ruling — between when counties begin mailing out ballots and Election Day, when they are due.

The Pennsylvania Department of State directed counties to pre-print the full year — 2024 — on the envelope to help voters avoid writing the wrong date, like their birthdays, previously one of the most common errors.

Is counting undated mail ballots ‘illegal’?

The first way to understand the issue is based on what state law has to say about these ballots. The Pennsylvania Election Code requires voters to date and sign the return envelope in order for the ballot to be accepted and counted. However, this enforcement of this provision has been heavily litigated over the past several years.

You may have seen headlines like this one from Fox News: “Pennsylvania Democrats openly admit to counting illegal ballots in McCormick-Casey race.” Or this one from the Washington Post editorial board: “Democrats thumb their nose at the rule of law in Pennsylvania.”

These pieces reference the decisions in Bucks, Montgomery, and Philadelphia counties to accept and count improperly dated ballots.

The Pennsylvania Supreme Court’s order on Monday cited a ruling it made in 2022 that “the Election Code’s command” to date ballots “is unambiguous and mandatory.”

But in the years since, both state and federal courts have been asked to consider other legal challenges to the rule, including most recently an argument that it violates the state constitution.

In August, the Commonwealth Court — one of Pennsylvania’s appellate courts — ruled that the dating requirement violates the free and equal elections clause of the state constitution. It ruled the same thing in October in response to a case stemming from a Sept. 17 special election in Philadelphia.

The Pennsylvania Supreme Court has yet to rule on the merits of such a challenge and repeatedly declined to do so ahead of the Nov. 5 election.

Instead, it threw out the August ruling on a technicality. And then, on Nov. 1, it ruled that Commonwealth Court’s decision in the Philadelphia case would not apply to the general election.

The three counties in turn argued that they had to consider whether rejecting someone’s improperly dated ballot this election would violate their constitutional rights, since the high court had not ruled on the issue.

The counties did not believe that Nov. 1 ruling prohibited them from “independently assessing whether rejecting mail ballots with voting errors cast is consistent with the Pennsylvania Constitution and the statutorily prescribed process for counting votes,” their attorneys argued.

The court made itself clear Monday afternoon, telling the counties to “comply with the prior rulings of this court in which we clarified that mail-in and absentee ballots that fail to comply with the requirements of the Pennsylvania Election Code shall not be counted for the purposes of the election held on November 5, 2024.”

One state Supreme Court justice, Kevin Brobson, admonished the counties for what he said was an overstepping of their authority.

Local election officials do not have the authority “to ignore Election Code provisions that they believe are unconstitutional,” he wrote. “Only the courts under our charter may declare a statute, or provision thereof, unconstitutional.”

What happens now?

Monday’s order stems from suits filed by the national and state Republican parties asking the high court to stop the counties from counting the improperly dated ballots. They asked the court to use its authority to immediately intervene in pressing issues, which it did in issuing Monday’s order.

Two lawsuits in Philadelphia and Bucks counties challenging the counting decisions were also filed last week by the campaign of U.S. Senate candidate Dave McCormick, the status of which is now unclear given the state Supreme Court’s ruling. McCormick, a Republican, leads Democrat Bob Casey, the incumbent, by fewer than 18,000 votes in a race that is currently being recounted because of the narrow margin.

The larger issue of whether rejecting improperly dated ballots is unconstitutional is still unresolved, although that may soon change. Republicans have appealed the Commonwealth Court ruling on the Philadelphia case to the state Supreme Court.

“I think the way the court handled this really did some harm to the election process in some ways,” said Quinn Yeargain, a professor of state constitutional law at Michigan State University and formerly of Widener University in Pennsylvania.

Yeargain said the courts have clearly known this issue was going to come up and have been presented with multiple opportunities to address it, but have “repeatedly refused to do so.”

“I really take some offense to this high and mighty ‘How dare you?’ particularly in Brobson’s concurrence, because the court has not provided guidance,” Yeargain said. “I don’t think the courts are going to be able to play that game of ‘not it’ forever. They are eventually going to have to deal with it. It is not going away.”

Carter Walker is a reporter for Votebeat in partnership with Spotlight PA. Contact Carter at cwalker@votebeat.org.

New court fight erupts over Pennsylvania’s ballot dating requirement ahead of key recount

2024-11-15T22:26:50+00:00

Votebeat is a nonprofit news organization reporting on voting access and election administration across the U.S. Sign up for Votebeat Pennsylvania’s free newsletter here.

Update, 6:14 p.m., Nov. 15: This story has been revised to include a statement from Centre County.

At least three Pennsylvania counties are accepting and counting mail ballots from last week’s election that lack a proper date on the envelope, prompting a new legal clash in a long-running disagreement over how to handle these ballots.

The Republican National Committee and the Pennsylvania Republican Party filed a lawsuit Thursday asking the state Supreme Court for an immediate ruling on the issue.

Counties are in the last stage of counting their ballots and finalizing their original election results as they prepare for a recount in the U.S. Senate race starting next week. What the counties do with ballots that are undated or that have an incorrect date are a particular concern because of how close that race is. As of 4 p.m. Friday, fewer than 23,000 votes separated Republican Dave McCormick and incumbent Democratic Sen. Bob Casey, according to results from the Department of State’s website.

And the two campaigns are taking an active role in the dispute over which ballots should be counted.

The GOP lawsuit names Philadelphia, Bucks, and Centre counties as having opted to count the undated and misdated ballots. Centre County Administrator John Franek said that the county did not count any undated ballots but that officials counted three challenged ballots that had issues with how the date was filled out.

At least one other county, Montgomery, has also confirmed it is counting them, after its board of elections voted 2-1 to approve the move Thursday.

“The issue for us is, and the reason that I’m voting yes, is because we’re talking about constitutional rights,” said Neil Makhija, chair of the Montgomery County Board of Elections, at Thursday’s meeting. “I cannot take an action to throw out someone’s ballot that is validly cast otherwise over an issue that … we know is immaterial.”

The Pennsylvania Department of State declined to say what the other 63 counties in the commonwealth are doing. Votebeat and Spotlight PA have confirmed that at least five, Allegheny, Snyder, Chester, Lycoming and Mercer, are not accepting the ballots to be counted.

Republicans, in their emergency petition Thursday, called for the Supreme Court to declare that the date requirement on ballots is mandatory and that counties shouldn’t count such ballots in this election.

“Regrettably … the recalcitrant rulings of these county boards, issued in the wake of a hotly contested election in which millions of Pennsylvanians cast their ballots and made their voices heard, require the Court to [act],” the Republican groups wrote.

Enforcement of the date requirement contested for years

Pennsylvania’s election code requires voters to sign and date the outer return envelope of their mail ballots and return the ballot in a secrecy envelope in order for it to be counted.

But enforcement of the dating requirement has been in dispute for years, with opponents, such as the American Civil Liberties Union of Pennsylvania, arguing that it is immaterial to a voter’s eligibility to vote and that rejecting a ballot on that basis violates their constitutional rights. Litigation has gone on continually since 2020.

The three most recent cases, both resolved in the last three months, did not bring much clarity to the issue from the state’s highest courts.

First, in August, the state’s Commonwealth Court ruled in a case brought by the ACLU and Public Interest Law Center that the requirement violated voters’ right to vote under the state constitution. But the state Supreme Court quickly voided that order on technical grounds, though it did not rule on the merits of the constitutional question.

After that ruling, the state Supreme Court declined to take up the constitutional issue directly.

Then, a mid-September special election in Philadelphia again resulted in litigation over the dating requirement, and the Commonwealth Court again ruled, on Oct. 30, that the requirement violated the state constitution. However, the court said its decision didn’t apply to the Nov. 5 general election.

Asked to provide clarity, the state Supreme Court affirmed on Nov. 1 that the Commonwealth Court’s decision applied only to the Philadelphia special election, not the general election, and again, did not address the underlying question of constitutionality.

Still, some counties such as Montgomery looked to the Commonwealth Court ruling in the Philadelphia case as evidence that the dating requirement is unconstitutional and that the undated or misdated ballots should be counted.

Department of State offers guidance

Election officials have repeatedly noted that they do not use the voter’s handwritten date to determine whether a ballot was received by the deadline, which is 8 p.m. on Election Day. Mail ballots have barcodes on their return envelopes that electronically record when ballots are sent out by the county and when they are received back.

Pennsylvania’s Department of State has given some guidance to counties on how to handle undated or misdated ballots, though this guidance does not have the force of law.

The guidance advises counties to segregate undated or misdated ballots — a common tactic when the legal status of certain ballots is uncertain. Citing ongoing litigation over how these ballots should be handled, it said the department would update its guidance “as soon as it is able.”

In the absence of a clear ruling from the state Supreme Court, that updated guidance has still not come.

In Snyder County, where officials decided not to count undated or misdated ballots, Commissioner Joe Kantz said it was clear to the election board that the Oct. 30 Commonwealth Court ruling in the Philadelphia special election case did not apply to any other county, or to the general election.

In its suit filed before the state Supreme Court on Thursday, the RNC and Pennsylvania GOP similarly argued that the high court has made itself clear in past rulings that the undated and misdated ballots are not to be counted.

They point to the court’s September decision voiding the Commonwealth Court’s ruling that the requirement was unconstitutional; a 2022 ruling in which the Supreme Court ordered undated or misdated ballots to not be counted; and the high court’s Nov. 1 order in the Philadelphia special election case.

The GOP organizations asked the court to use its authority to immediately order counties not to count the ballots.

Earlier this week, Republicans also appealed the Commonwealth Court’s ruling in the Philadelphia special election case to the state Supreme Court, asking the court to specifically weigh in on the case’s merits.

Like the state and national Republican parties, McCormick is seeking to stop undated or misdated ballots from being counted. His campaign sued Bucks County Wednesday and Philadelphia on Friday challenging their decision to count the ballots. That’s a reversal for McCormick, who during his failed 2022 bid for U.S. Senate sued to have undated and misdated ballots counted in the Republican primary.

Casey’s campaign has meanwhile been advocating for the ballots to count.

“The Pennsylvania Supreme Court has not ruled on the merits of this case, and we agree with both the Commonwealth Court’s ruling and David McCormick’s 2022 position that invalidating misdated and undated ballots disenfranchises Pennsylvania voters over a requirement that is irrelevant in determining a voters’ eligibility,” a statement from Casey campaign manager Tiernan Donohue said.

Carter Walker is a reporter for Votebeat in partnership with Spotlight PA. Contact Carter at cwalker@votebeat.org.

Philadelphia must count undated and misdated mail ballots from September election, Pa. court rules

2024-10-30T19:05:31+00:00

Votebeat is a nonprofit news organization reporting on voting access and election administration across the U.S. Sign up for Votebeat Pennsylvania’s free newsletter here.

Update, Nov. 1, 2024: The Pennsylvania Supreme Court clarified in an order Friday that this ruling does not apply to the Nov. 5, 2024, general election. This story has been updated with comment from the RNC.

Philadelphia must count mail ballots from the September special elections that were submitted with return envelopes that voters incorrectly dated or failed to date, a state appellate court ruled Wednesday in a decision that doesn’t explicitly apply to the November general election.

While the ruling applies narrowly, it raises the possibility of additional action by the state Supreme Court and gives county officials yet another ruling to consider when deciding how to handle ballots this November.

In the 3-2 ruling Wednesday, the state’s Commonwealth Court said that the city had to count ballots from mail voters who made dating errors in the Sept. 17 special elections for two vacant legislative seats.

The ruling said a local Philadelphia court got it right when it said rejecting the ballots violated the state constitution.

“We hold that the trial court did not err in ordering the County Board to count the 69 undated and incorrectly dated absentee and mail-in ballots cast in the [special elections] on the basis that not counting those ballots violates the free and equal elections clause of the Pennsylvania Constitution,” Judge Ellen Ceisler wrote for the majority.

In a footnote, Ciesler wrote that the case “relates to a special election that has already occurred, and not the 2024 general election.”

In a dissenting opinion, Judge Matthew Wolf said the majority decision risked “causing confusion on the eve of the 2024 General Election.” Judge Patricia McCullough raised the same concern in a separate dissent.

“There simply was and is no reason to decide this question now, and the Majority certainly has not done so in ordinary course,” McCullough wrote. “Both the trial court and this Court should have declined to issue rushed and novel constitutional rulings that surely will confuse the expectations of both voters and county boards of elections alike.”

The decision leaves unresolved constitutional questions about counting undated or misdated ballots in the November election, though it does not force officials to count them.

“Of course we hope they will, because if [rejecting them is] unconstitutional in September it is unconstitutional in November,” said Andy Hoover, a spokesperson for the American Civil Liberties Union of Pennsylvania, which along with the Public Interest Law Center brought the case on behalf of two voters. “And if they or any county don’t, this ruling sets up post-election litigation.”

While an appeal in the case could prompt the state Supreme Court to step in next, for now, other counties aren’t bound by the ruling.

“The order certainly does not expressly apply to all counties,” said Adam Bonin, a Philadelphia-based Democratic election lawyer, who was not part of this case but has been involved in other lawsuits challenging the dating requirement. But Bonin said all county attorneys need to take note of the fact that a state court has ruled that disqualifying ballots for these reasons violates the constitution, and advise their counties accordingly.

After the September special elections, the American Civil Liberties Union of Pennsylvania and Public Interest Law Center sued Philadelphia on behalf of two voters who neglected to date their ballot envelopes, which officials rejected. The groups argued that under a provision in the state constitution, the city could not reject the ballots for such a trivial paperwork error.

The argument is identical to one made by the groups in a separate case this summer. The Commonwealth Court ruled in the groups’ favor in that case in August, but the state Supreme Court voided the decision on procedural grounds in September. The high court then also declined an ACLU request to exercise its authority to bypass the usual court process and immediately decide the dating issue.

The ACLU and Public Interest Law Center hailed Wednesday’s ruling as a victory.

“We applaud the Commonwealth Court for its ruling recognizing the rights of voters, and we hope that every county will abide by this ruling in its processing of mail ballots next month,” said Mimi McKenzie, legal director of the Public Interest Law Center. “Because today’s decision may not be the last word on this issue, we still advise voters to date their return envelope, take any opportunity they have to cure mistakes, or vote provisionally on election day if they made a mistake on the envelope date.”

In the Philadelphia case, a local judge ruled that the city erred in not counting the ballots on the grounds that it violated the state constitution’s free and equal elections clause, but the city and Republican groups that intervened in the case appealed that ruling to the Commonwealth Court.

The city commissioners appealed on the grounds that they did not want to be in a scenario where Philadelphia was the only county counting the ballots or was required to count the ballots for the special elections but not the November general election.

“The Board appreciates the Commonwealth Court’s ruling in this case, which will enable the Board to avoid inconsistency, comply with the Election Code, and uphold the voting rights of electors under the Pennsylvania Constitution,” Ava Schwemler, a spokesperson for the city said. “We are grateful for a resolution on this matter to guide consistent and equitable election operations.”

Schwemler said the city will not be appealing to the state Supreme Court.

Republican groups that intervened in the case argued the ACLU and Public Interest Law Center’s case had procedural defects, and the Philadelphia court’s ruling violated a legal principle of not changing the rules close to an election.

“The Department is pleased with the result, which won’t interfere with the upcoming election and will only serve to enfranchise voters who otherwise would have their votes thrown out for meaningless mistake,” said Amy Gulli, a spokesperson for the Pennsylvania Department of State.

Following the Nov. 1 Pennsylvania Supreme Court decision, RNC Chairman Michael Whatley hailed the order as a victory.

“This is another big win for election integrity and Pennsylvania voters,” he said in a statement. “For the fifth time, we have successfully defended the state’s dated ballot requirement.”

Bonin said he anticipated the state Supreme Court will take up the issue soon.

“I assume that the state Supreme Court is going to bring clarity to this between now and when the counties are counting their ballots,” he said. “They have had multiple opportunities to bring finality to this. … The only way that this issue goes away is if all the courts close all the doors.”

Carter Walker is a reporter for Votebeat in partnership with Spotlight PA. Contact Carter at cwalker@votebeat.org.

Voters deserve second chance if mail ballots are rejected, Pennsylvania Supreme Court rules

2024-10-23T22:41:41+00:00

Votebeat is a nonprofit news organization reporting on voting access and election administration across the U.S. Sign up for Votebeat Pennsylvania’s free newsletter here.

Update, Nov. 1, 2024: The U.S. Supreme Court denied an application from the Republican National Committee and Pennsylvania Republican Party to halt the Pennsylvania Supreme Court’s Oct. 23 decision.

Marian Schneider, senior voting rights policy counsel at the ACLU of Pennsylvania, said this means voters who make disqualifying mistakes when returning their mail ballot can cast a provisional vote on Election Day and have it counted.

“We think that was correct,” she said. “The Geneser case in the Pennsylvania Supreme Court was a very straightforward exercise of the court’s roles.”

An RNC spokesperson said the party was “disappointed” in the ruling but touted its other recent court victories in Pennsylvania.

This story was previously updated with comments from a Butler County commissioner and RNC spokesperson.

Pennsylvanians must be given a chance to vote on Election Day if their mail ballots have been rejected because of a disqualifying mistake, the state Supreme Court ruled Wednesday.

That means voters who fail to correctly sign or date the return envelope or fail to use a secrecy envelope are entitled to cast a provisional ballot on Election Day at a polling place and have it counted, as long as that ballot wouldn’t be rejected for some other disqualifying issue.

In a 4-3 decision, the court said that provisional voting was meant to assure access to the right to vote, while simultaneously preventing double voting.

Justice Christine Donohue, writing for the majority, noted that the Republican litigants argued that in order to maintain election integrity, provisional ballots should not be counted, but said the majority was “at a loss to identify what honest voting principle is violated by recognizing the validity of one ballot cast by one voter.”

“If appellants presume that the general assembly intended to disqualify the provisional ballot of a voter who failed to effectively vote by mail in order to punish that voter, we caution that such a construction is not reconcilable with the right of franchise,” she wrote.

The American Civil Liberties Union of Pennsylvania and the Public Interest Law Center, which brought the case on behalf of two voters, celebrated the ruling as a victory.

“Today’s decision affirms that if you make a paperwork mistake that will keep your mail ballot from counting, you have the right to vote by provisional ballot at your polling place on Election Day,” said Ben Geffen, senior attorney at the Public Interest Law Center. “This reinforces the right to vote in Pennsylvania.”

The case began in Butler County, which rejected provisional ballots cast by two voters whose mail ballots for the April primary had been rejected earlier for being returned without a secrecy envelope. Provisional ballots are used at polling places by voters whose eligibility is in question but who still want to vote. Those ballots are counted only after the voter’s eligibility is confirmed, including a check to make sure no mail ballot from that same voter has already been counted.

The ACLU and Public Interest Law Center sued the county, arguing that the county had misinterpreted a section of the state’s election code in considering the rejected mailed ballots as “cast.”

The groups lost at the county court level, but that decision was overturned by the state’s Commonwealth Court in September. Republican groups that intervened in the case appealed it to the state Supreme Court. The ruling from the state’s highest court means it will apply statewide, not just in Butler County.

Pennsylvania law requires voters to sign and date their ballot return envelopes, and to place the ballot in an inner secrecy envelope before being placed in the return envelope, in order for the ballot to be counted.

Thousands of ballots are rejected each election for these issues. During the April primary, counties rejected roughly 8,500 ballots, or 1.22% of those returned, for lacking a signature, date, or being returned without a secrecy envelope, according to an analysis of Pennsylvania Department of State data.

The Pennsylvania Supreme Court recently declined to weigh the merits of the dating rule on an emergency basis, meaning it will likely remain in effect for at least the Nov. 5 election.

In a dissent joined by two other justices, Justice P. Kevin Brobson wrote that the state’s election code was “clear and unambiguous” that Butler County “not only lacked the authority to count Electors’ provisional ballots, [but] the Election Code expressly prohibited the Board from counting them.”

Butler County Commissioner Kimberly Geyer said the county wasn’t looking to disenfranchise any voters, and the root cause of what is happening is ambiguities in the law and the legislature’s lack of action to address them.

“Attorneys from special advocacy groups, such as the ACLU, including the Pennsylvania Department of State, who is the State overseer of statewide elections, is utilizing the courts to rewrite the election laws,” she said. “The bottom line is this, counties are following the laws on the books, are then sued in court and the courts are making the final determination. Counties then are required to carry out the Supreme Court’s ruling.”

Claire Zunk, a spokesperson for the Republican National Committee, which intervened in the case, said Wednesday the party was disappointed in the ruling.

“The legislature has set clear, commonsense safeguards to protect the ballot, and those rules must be enforced. We will pursue all legal avenues to protect the vote for Pennsylvanians,” she said.

The case is one of three major cases on mail ballots the high court could rule on before the election.

In another case from western Pennsylvania, the ACLU and the Public Interest Law Center sued Washington County over its policy of not notifying voters of errors with their mail ballots. That case is currently before the state Supreme Court, where a decision is pending.

Another case brought by the two groups deals with whether mail ballot return envelopes need to be dated in order for the ballot to be counted. The groups have brought several iterations of this case; the latest one began after a special election last month in Philadelphia for an open seat in the state House, when the groups sued the city on behalf of voters for not accepting improperly dated mail ballots cast in the race.

That case is awaiting a decision from the state’s Commonwealth Court, and could be appealed up to the state Supreme Court after that.

Carter Walker is a reporter for Votebeat in partnership with Spotlight PA. Contact Carter at cwalker@votebeat.org.

Pennsylvania Supreme Court says it’s too late to change rules on mail ballots

2024-10-07T23:32:41+00:00

Votebeat is a nonprofit news organization reporting on voting access and election administration across the U.S. Sign up for Votebeat Pennsylvania’s free newsletter here.

The Pennsylvania Supreme Court refused to immediately take up two lingering questions about the rules for mail ballot voting before the November election, saying it’s too close to Election Day to revisit the law now.

The court rejected two petitions Saturday from groups that had sought emergency decisions. One was a request from voting rights groups represented by the American Civil Liberties Union in a long-running effort to end enforcement of mail ballot dating requirements. The other was a request from Republican groups to end policies in counties that notify voters of errors with their mail ballots and give them a chance to fix the errors.

“This Court will neither impose nor countenance substantial alterations to existing laws and procedures” amid an ongoing election, the court wrote in its rejection of the ACLU’s petition.

The rejections mean that the rules for mail ballot voting will likely remain mostly unchanged for the Nov. 5 presidential election, although some other cases about the issue are still pending. The ruling also signals that the high court may be taking to heart 2020 criticism that it changed the rules of the election late in the game.

“Changing election law in the middle of an election is never a good idea, and the parties in these cases have had four years to build a record and bring matters before the courts,” said Thad Hall, elections director in Mercer County.

For voters and election officials, the rules for the November election are now clearer than they were last week, barring any other court ruling before the election. Voters will have to write the correct date on their mail ballot envelope in order for those ballots to be counted. But voters in certain counties will be notified of such errors and will be allowed to fix them.

Court issues decisions as voting gets underway

The ACLU and Public Interest Law Center argued in their petition to the court last month that the mail ballot dating requirement violated the state constitution’s protections for voting rights, and sought to bypass the lower courts to get a fast ruling directly from the state Supreme Court. The petition was the latest development in a long-running legal battle over the requirement, with courts going back and forth this year on whether election officials can enforce the date requirement, which leads to thousands of ballots being rejected each election.

But the state Supreme Court decided Saturday that it would not consider changing the rules again before the election. Mail ballot voting is already underway in many counties.

“While it’s disappointing that our motion for review was denied, the Pennsylvania Supreme Court still has not ruled on the merits of our argument that enforcing the handwritten date rule violates voters’ constitutional rights,” the ACLU of Pennsylvania’s legal team said in a statement. “We hope that, when the next case is before them on this issue, they’ll consider the important constitutional issue at stake. … Voters should not be disqualified over an irrelevant human mistake.”

One judge, Chief Justice Debra Todd, dissented and said she felt the court should take the case.

“The issue before us is of grave importance,” she wrote. “Our county boards of elections, the Secretary of State, the courts of this Commonwealth who are tasked with adjudicating election matters in the first instance, and the voters themselves need clarity on this issue prior to Election Day when ballots will be canvassed.”

In the other petition rejected Saturday, the Republican National Committee and Pennsylvania GOP asked the high court to end notice-and-cure, a practice in some counties of notifying voters of disqualifying errors with their mail ballots and allowing them the opportunity to fix them.

The RNC argued the practice “ignores the law.”

Roughly 30 counties have such policies, according to a Votebeat and Spotlight PA analysis, including many Republican-leaning areas. Many counties have had such policies since the 2020 election.

On Saturday, the court said Republicans had waited too long to bring the challenge, and had not demonstrated the need for a quick intervention. The effect is that the state’s patchwork of notice-and-cure policies will remain in place for the 2024 election.

A spokesperson for the RNC did not respond to a request for comment.

Other election cases are still pending before the courts

The court’s rulings Saturday, particularly in the mail ballot dating case, signaled its desire to avoid making late changes to voting rules.

During the 2020 election, and since then, the court faced criticism from Republicans for rulings that they perceived as doing just that.

For example, the court ruled unanimously in 2020 that counties could not reject ballots because the voter’s signature on the outer envelope did not match one on file. Another controversy was over the court’s September 2020 decision that allowed mail ballots received up to three days after the election to be counted, due to issues that year with the coronavirus pandemic and problems in the U.S. Postal Service

“For these particular cases, ballots are already out, so seeming to change the rules while people are already voting is something that the courts want to avoid,” said Kyle Miller, a policy advocate with the nonpartisan group Protect Democracy. “I think at this point the court was right in saying ‘The rules are the rules. Let’s get through this election and then we can consider changing it for the next one.’”

He added that while the courts are an important backstop for voting rights, it’s the Legislature that should take up these issues.

But there is still another mail ballot dating case pending in state courts that could go before the high court before the election.

Following a special election last month in Philadelphia for an open seat in the state House, the ACLU of Pennsylvania and the Public Interest Law Center sued the city on behalf of voters for not accepting improperly dated mail ballots cast in the race.

Here again, the organizations argued that the requirement violates the state constitution. The voters won at the county level, but Republicans who intervened in the case appealed that ruling to the Commonwealth Court.

Written arguments are due in that case by next Tuesday. It is unclear how soon after that the Commonwealth Court would rule, and whether the case could end up before the state Supreme Court.

However, the court made clear in its rejection of the ACLU petition that it would still consider election cases that come through the “ordinary course” of appeal, which starts in the county courts and goes through the Commonwealth Court before reaching the high court.

Two such cases are still pending before the Pennsylvania Supreme Court. One, from Butler County, deals with whether voters whose mail ballots are rejected for errors have the right to cast a provisional ballot that gets counted. The other, from Washington County, deals with the county’s obligation to inform voters if it is going to reject their mail ballots.

Carter Walker is a reporter for Votebeat in partnership with Spotlight PA. Contact Carter at cwalker@votebeat.org.

ACLU asks U.S. Supreme Court to take up challenge to Pennsylvania’s mail ballot dating rule

2024-09-27T22:37:29+00:00

Votebeat is a nonprofit news organization reporting on voting access and election administration across the U.S. Sign up for Votebeat Pennsylvania’s free newsletter here.

The American Civil Liberties Union of Pennsylvania is asking the U.S. Supreme Court to decide whether requiring voters to date their mail ballot return envelopes violates federal law.

The group filed its petition Friday on behalf of the Pennsylvania branch of the NAACP. It follows a separate request from voting rights groups this week to Pennsylvania’s highest court for an expedited ruling on the date requirement.

“The right to vote is one of the most important in this country,” said Janette Wallace, general counsel of the NAACP. “Ballots should not be rejected because of irrelevant errors. We will continue to fight so that voters’ voices may be heard. That’s why we’re taking this to the Supreme Court.”

The case is one of several challenging the rules around mail ballot voting in Pennsylvania, and centers on whether the state’s requirement that voters handwrite a date on their mail ballot return envelope violates the materiality provision of the 1964 Civil Rights Act.

That provision says a person cannot be denied the right to vote because of “an error or omission on any record or paper relating to any application, registration, or other act requisite to voting, if such error or omission is not material in determining whether such individual is qualified under State law to vote.”

Shortly after the November 2023 municipal election, a federal district court judge ruled that the date was “wholly irrelevant” in determining a voter’s eligibility, and that Pennsylvania’s requirement did violate the provision.

But Republican groups appealed the ruling to the 3rd U.S. Circuit Court of Appeals, which ruled 2-1 in March that the requirement did not violate the provision. The judges said the materiality provision applies only to the voter registration process, and not to rules regarding the validity of ballots.

A spokesperson for the Republican National Committee, which is a party to the case in favor of keeping the dating requirement in place, did not immediately respond to a request for comment.

It is not clear yet whether the U.S. Supreme Court will take the case, but if it does, voters should not expect a decision before the November election. Any decision would be months away, said Rick Hasen, an expert in election law at the UCLA School of Law.

Hasen said it’s always dicey to bring a voting rights case before the current Supreme Court — which has a strong conservative majority and has issued decisions in recent years viewed as weakening voting rights. But he figures the plaintiffs may feel they have little to lose, since courts have already ruled the materiality provision doesn’t apply.

Meanwhile, the ACLU and the Public Interest Law Center, on behalf of other clients, are asking the Pennsylvania Supreme Court to decide whether the date requirement violates a section of the state constitution. It is not yet clear whether the state high court will take up the case, but if it does, a ruling would likely come before November.

For now, Pennsylvania voters will have to date their mail ballot return envelope, as well sign it and place the ballot in an inner secrecy envelope, in order for their mail vote to be counted this year.

Carter Walker is a reporter for Votebeat in partnership with Spotlight PA. Contact Carter at cwalker@votebeat.org.

Voting rights groups ask Pa. high court to take up mail ballot dating issue immediately

2024-09-25T18:06:50+00:00

Votebeat is a nonprofit news organization reporting on voting access and election administration across the U.S. Sign up for Votebeat Pennsylvania’s free newsletter here.

A coalition of voting rights advocates is trying again to get the Pennsylvania Supreme Court to conclusively decide whether voters need to date their mail ballot return envelope in order for their vote to be counted, likely the last chance to settle the question before the November election.

After the court rebuffed the plaintiffs on jurisdictional grounds in a decision earlier this month, the American Civil Liberties Union of Pennsylvania and the Public Interest Law Center asked the high court to exercise its authority to bypass the lower courts to directly address pressing legal matters.

Because the court previously did not rule on the merits of the case, the organizations, suing on behalf of a coalition of voting rights groups, are again arguing that the dating requirement violates the state constitution.

“The refusal to count timely mail ballots submitted by eligible voters because of an inconsequential error violates the fundamental right to vote recognized in the Free and Equal Elections clause,” the suit says. “The imminent threat of mass disenfranchisement warrants this Court’s exercise of its King’s Bench authority.”

It is unclear if the court will use its discretionary power to take up the case, but at least three of the court’s seven judges indicated they were open to such a move.

If the court does take the case, it could have a large impact on voters this November, as thousands of ballots are rejected each election for lacking a proper date.

Pennsylvania’s mail-in voting law, Act 77, requires voters to sign and date the outer return envelope of their mail ballots, and return the ballot in a secrecy envelope, in order for it to be counted.

During the April primary, counties rejected roughly 8,500 ballots, or 1.22% of those returned, for lacking a signature or date, or for being returned without a secrecy envelope, according to an analysis of Pennsylvania Department of State data. More than 4,400 of those were rejected for dating issues. Applications for nearly double the number of ballots returned in the primary have already been approved, and ballots will soon reach voters. More voters are expected to apply before the Oct. 29 deadline.

The dating requirement has been caught in nearly continuous litigation since Act 77 was implemented in 2020. Federal and state judges have ruled at various points that the date should not be required, but those rulings have since been overturned.

Earlier this month in the most recent case, brought by many of the same litigants, the state Supreme Court voided a lower court’s ruling that had found the requirement unconstitutional.

The ACLU and others had argued to the state’s Commonwealth Court that the provision violated the “free and equal elections” clause of the state constitution. That clause says that “no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.”

In a 4-1 ruling in late August, the Commonwealth Court agreed with them. But the ruling was quickly appealed by Republicans to the state Supreme Court, which voided the lower court’s order in a 4-3 ruling, on the grounds that the lower court did not have the authority to hear the case.

The three Supreme Court judges who disagreed with the majority’s ruling wrote in their dissent that the high court should use its authority to take up the issue immediately.

The ACLU is not the only group asking the court to exercise this power. The Republican National Committee and Pennsylvania GOP last week asked the court to take up a case on whether counties were violating the law in regards to a mail ballot policy adopted in some counties.

The policy, known as notice and cure, is adopted in some counties where elections offices notify voters of errors on their mail ballot — such as lacking a proper date — and permit them to fix those errors.

In a statement, RNC Chairman Michael Whatley said the policy “ignores the law,” though the Pennsylvania Department of State disputes that characterization.

The court has not yet said whether it will hear that case either.

Carter Walker is a reporter for Votebeat in partnership with Spotlight PA. Contact Carter at cwalker@votebeat.org.

Pennsylvania court says county should have warned voters before rejecting their mail ballots

2024-09-24T20:46:34+00:00

Votebeat is a nonprofit news organization reporting on voting access and election administration across the U.S. Sign up for Votebeat Pennsylvania’s free newsletter here.

A Western Pennsylvania county that rejected hundreds of mail ballots in the April primary should have notified voters beforehand, a state appellate court ruled Tuesday. The ruling could add pressure on other counties to notify voters of errors with their mail ballots for the November election.

In a 2-1 decision, a panel of the Commonwealth Court agreed with a lower court judge that Washington County erred when it adopted a policy to reject mail ballots without telling voters and had a duty to inform them of their errors.

“The current policy emasculates the Election Code’s guarantees by depriving voters … the opportunity to contest their disqualification or to avail themselves of the statutory failsafe of casting a provisional ballot,” Judge Michael Wojcik wrote for the majority.

The decision applies to Washington County and does not set a statewide legal precedent, but county attorneys are likely to take note of the court’s opinion when advising their boards of elections about how to handle mail ballots with errors.

The decision can be appealed to the state Supreme Court, where a ruling would have statewide effect.

The case was brought by the American Civil Liberties Union of Pennsylvania and the Public Interest Law Center on behalf of voting rights groups and voters whose ballots were rejected under the policy.

“Voters in Washington County can be assured that, if they make a mistake with their mail ballot, they’ll be notified and have a chance to rescue their vote,” said Claudia De Palma, senior attorney at the Public Interest Law Center. “That’s a win for voters.”

Before this year’s April primary election, the Republican majority on Washington County’s board of elections opted not to notify voters of mistakes with their mail ballots that would cause their votes to be disqualified, such as a missing date or signature, or being returned without a secrecy envelope.

The Pennsylvania Supreme Court ruled in 2020 that state law didn’t require counties to notify voters and give them a chance to fix the error, but it didn’t say that the practice was prohibited either. As a result, many counties adopted such a process, referred to as “notice and cure.” At least 14 counties now do this.

Many others say they do not have notice and cure policies, or have not answered questions about their policy.

But unlike other counties without notice and cure policies, Washington County gave voters no warning if their ballot had a defect that would result in it being rejected, even though it acknowledged receiving them. When Washington County received a mail ballot back from a voter, it used only generic codes in the state’s ballot tracking system to indicate the ballot had been received, rather than more specific codes that could indicate whether there is an issue that prevents the ballot from being counted. These codes generate distinct emails to voters, and the more specific codes would have generated emails that informed voters their ballots were at risk of rejection.

Ultimately, the county rejected 259 ballots during the primary for issues with a signature or date on the outer envelope, or being returned without an inner secrecy envelope. Statewide, roughly 8,500 ballots, or 1.22% of those returned, were rejected for one or more of those errors, according to an analysis of Pennsylvania Department of State data.

The ACLU and Public Interest Law Center sued the county — on behalf of seven voters, the local NAACP branch, and the Center for Coalfield Justice — arguing that by not informing the voters that their ballots were at risk of rejection, the county had violated the voters’ constitutional due process rights and denied them the opportunity to challenge the decision or cast provisional ballots.

He ordered the county to change its process for what codes it uses when receiving ballots, so voters better understand that their ballot is at risk of rejection.

Washington County appealed the decision to the Commonwealth Court, joined by state and national Republican groups that had intervened in the case.

Nick Sherman, the Republican chair of the county’s board of commissioners, did not immediately return calls or emails seeking comment on whether the county would appeal to the Pennsylvania Supreme Court.

The Pennsylvania GOP and the Republican National Committee also did not reply to a request for comment.

Under new rules that the Supreme Court established last month to resolve election disputes quickly, an appeal must be filed within three days.

The case is part of a flurry of litigation to be resolved before the November election over which mail ballots should be counted in Pennsylvania, a crucial swing state with a tight race between presidential candidates Kamala Harris and Donald Trump.

In a case from another western Pennsylvania county, the state Supreme Court is weighing whether counties should have to count provisional ballots cast in person by voters whose mail ballots were rejected for reasons such as lacking a secrecy envelope.

Carter Walker is a reporter for Votebeat in partnership with Spotlight PA. Contact Carter at cwalker@votebeat.org.

Pennsylvania Supreme Court restores date requirement for mail ballots, voiding lower-court ruling

2024-09-13T20:32:20+00:00

Votebeat is a nonprofit news organization reporting on voting access and election administration across the U.S. Sign up for Votebeat Pennsylvania’s free newsletter here.

Pennsylvanians who vote by mail must write a proper date on their ballot envelopes for their votes to be counted, under a decision Friday from the state Supreme Court that could affect thousands of voters this November.

The decision voids an Aug. 30 Commonwealth Court ruling that enforcing the requirement on ballot dating violated voters’ rights under the state constitution. The Supreme Court’s 4–3 decision was based on whether the lower court had jurisdiction in the case, not on the merits of the underlying claim, meaning that the constitutional argument could be made again in court.

Republicans who appealed the lower court’s decision argued to the state Supreme Court last week that the petitioners failed to include all counties as parties to the case, among other claims. The original suit, brought by the ACLU of Pennsylvania and the Public Interest Law Center on behalf of a coalition of voting rights groups, targeted the Department of State, Allegheny County, and Philadelphia.

“The Commonwealth Court lacked subject matter jurisdiction to review the matter given the failure to name the county boards of elections of all 67 counties,” the Supreme Court wrote in its order Friday. The inclusion of Secretary of the Commonwealth Al Schmidt as a named party was not enough to give the Commonwealth Court jurisdiction in the case, the order said.

Adam Bonin, a Philadelphia-based election lawyer who was not part of this case but has represented Democrats in other lawsuits challenging the dating requirement, said that, barring another ruling, voters will need to write a date on their ballot return envelope in order for their ballots to be counted.

In a statement to Votebeat and Spotlight PA, Gov. Josh Shapiro said it was “unfortunate” the court did not side with voters.

“It should be clear that voters who make an inconsequential dating error deserve to still have their valid vote counted,” he said.

Republicans called the decision a “victory for election integrity” in a critical swing state.

“This is a huge win to protect the vote in Pennsylvania that will protect commonsense mail ballot safeguards and help voters cast their ballots with confidence,” RNC Chairman Michael Whatley said in a statement.

Justice David Wecht dissented with the majority, and called for the Supreme Court to address the constitutional claims directly and quickly, given the fast-approaching election. The court should exercise its “King’s bench” authority to bypass the normal judicial process and have the parties submit briefs on the issue directly to the Supreme Court, Wecht said.

He was joined in his dissent by Chief Justice Debra Todd and Justice Christine Donohue.

Steve Loney, senior supervising attorney for the ACLU of Pennsylvania, said his group would continue its fight on behalf of the voting rights groups that brought the case.

“These eligible voters who got their ballots in on time should have their votes counted and voices heard,” he said in a statement. “The fundamental right to vote is among the most precious rights we enjoy as Pennsylvanians, and it should take more than a trivial paperwork error to take it away.”

A spokesperson for the ACLU said the groups involved had not decided what their next move would be or whether to seek a direct ruling on constitutional claim from the state Supreme Court.

[Update, Sept. 19, 2024: After the Supreme Court’s ruling, the ACLU and Public Interest Law Center moved to amend their filing in Commonwealth Court to include all 67 counties. On Thursday, the Supreme Court clarified that that was not sufficient for the Commonwealth Court to have jurisdiction, and ordered the lower court to dismiss the case.]

Federal judges have gone back and forth over whether enforcing the requirement violated federal voting law. The current case is the first to directly challenge this requirement under the state constitution.

It’s the latest of several challenges to the dating requirement since the state implemented its mail voting law, Act 77, in 2020. Act 77 required voters to sign and date the outer return envelope of their mail ballots, and return the ballot in a secrecy envelope, in order for them to be counted.

Thousands of ballots are rejected each election for dating issues. During the April primary, counties rejected roughly 8,500 ballots, or 1.22% of those returned, for lacking a signature or date, or for being returned without a secrecy envelope, according to an analysis of Pennsylvania Department of State data. More than 4,400 of those were rejected for dating issues.

The ACLU and the Public Interest Law Center initiated the challenge earlier this summer on behalf of a coalition of civil rights groups, arguing that enforcing the date requirement violated the “free and equal elections” clause of the state constitution. That clause says that “no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.”

In August, a majority of a five-member panel of Commonwealth Court judges agreed with them.

“The refusal to count undated or incorrectly dated but timely mail ballots submitted by otherwise eligible voters because of meaningless and inconsequential paperwork errors violates the fundamental right to vote recognized in the free and equal elections clause,” Judge Ellen Ceisler wrote for the 4-1 majority.

The Supreme Court’s ruling means the requirement is back in place, Bonin said.

Bonin noted that the challenges to the date requirement are still active on multiple tracks. An NAACP challenge to the requirement under federal law could be appealed to the U.S. Supreme Court, he said, and he is also representing clients challenging the requirement in a separate case.

The Pennsylvania Department of State was named as a defendant in the latest case, but did not defend the date requirement. In a statement, the agency said the decision was “disappointing” and left an important question unanswered.

“The Department hopes that this question is answered as soon as possible, for the sake of the voters and our county election administrators preparing for the upcoming presidential election,” the statement said.

Carter Walker is a reporter for Votebeat in partnership with Spotlight PA. Contact Carter at cwalker@votebeat.org.

Mail ballots can’t be rejected over improper date on envelope, Pennsylvania court rules

2024-08-30T21:23:16+00:00

Votebeat is a nonprofit news organization reporting on voting access and election administration across the U.S. Sign up for Votebeat Pennsylvania’s free newsletter here.

Not counting a voter’s mail ballot because they failed to properly date the return envelope violates their rights under the state constitution, a Pennsylvania appellate court ruled Friday.

Republicans said they would immediately appeal the ruling to the Pennsylvania Supreme Court. But if the decision stands, it could affect thousands of ballots and influence the outcome of close races.

The five-judge Commonwealth Court panel split 4-1 on the decision.

The case, brought by a coalition of civil rights groups represented by the American Civil Liberties Union of Pennsylvania among others, is the latest of several challenges to the dating requirement since the state implemented its mail voting law, Act 77, in 2020.

Act 77 required voters to sign and date the outer return envelope of their mail ballots, and return the ballot in a secrecy envelope, in order for them to be counted.

Lawyers for the plaintiffs hailed the ruling. “This decision has strengthened the right to vote in Pennsylvania,” said Brent Landau, executive director of Public Interest Law Center, one of the groups that sued to challenge the requirement. “Mail ballots will no longer be rejected because of a meaningless requirement to fill out a date that isn’t used for anything.”

The suit named two of the state’s largest counties and the Pennsylvania Department of State as defendants. The department declined to defend the requirement in court and called the ruling a “victory.”

The Pennsylvania GOP and the Republican National Committee both intervened in the case to defend the requirement. In a statement, Claire Zunk, a spokesperson for the Republican National Committee, said the decision is “an example of the worst kind of judicial activism” and that the RNC would appeal the ruling “immediately.”

“Courts should not undermine election confidence and integrity by striking down commonsense election laws enacted by the people’s representatives,” she said.

Adam Bonin, a Philadelphia-based Democratic election lawyer, who was not part of this case but has been involved in other lawsuits challenging the dating requirement, said the ruling should apply statewide, even though only the Department of State and Philadelphia and Allegheny counties were sued.

During oral arguments earlier this month, a lawyer for the ACLU argued that if the state could not show a compelling interest for the date requirement, then the free and equal elections clause in the state constitution would bar officials from using the rule to reject ballots.

In the ruling, Ceisler highlighted the determination in previous cases that the date “is not used to determine the timeliness of a ballot, a voter’s qualifications/eligibility to vote, or fraud.”

“Therefore, the dating provisions serve no compelling government interest,” she wrote.

The state and national Republican parties had argued that the date could be helpful in detecting fraud, or could serve as a backup option for determining the receipt date of a ballot if electronic systems were to fail. They also asserted that, should the judges find the dating requirement invalid, all of Act 77 would have to be struck down, based on the way the law is worded.

But the majority disagreed, saying plaintiffs sought only “a declaration that enforcement of the dating provisions in a manner that excludes undated and incorrectly dated” ballots was unconstitutional.

In a statement, the Pennsylvania Department of State said the decision was a victory for voting rights.

“Multiple court cases have now confirmed that the dating of a mail-in ballot envelope, when election officials can already confirm it was sent and received within the legal voting window, provides no purpose to election administration,” the statement said. “This ruling makes clear a voter’s minor error of forgetting to date or misdating a ballot envelope cannot be a cause for disenfranchisement. Our Administration will always uphold Pennsylvanians’ right to vote and is pleased with today’s ruling.”

Gov. Josh Shapiro, a Democrat, tweeted that the court “got it right.”

The judge who dissented, Patricia McCullough, argued that the dating requirement “falls squarely” within the legislature’s authority to establish voting rules, and wrote that the majority ignored “more than a century” of state Supreme Court precedent on the free and equal clause of the state constitution.

The ruling could have a wide impact this November.

During the April primary, counties rejected roughly 8,500 ballots, or 1.22% of those returned, for failing to meet one or more of these standards, according to an analysis of Pennsylvania Department of State data. More than 4,400 of those were rejected for dating issues.

But those numbers are expected to be higher this fall, as more voters will turn out to vote in the presidential election and opt to cast their ballots by mail.

“If there was any real justification to this, we’d be in a different boat, but there isn’t,” Bonin said. “This is what the framers of the Pennsylvania Constitution meant by the free and equal elections clause.”

Carter Walker is a reporter for Votebeat in partnership with Spotlight PA. Contact Carter at cwalker@votebeat.org.

These three court cases could determine how Pennsylvania handles mail ballots this fall

2024-08-29T15:20:57+00:00

Votebeat is a nonprofit news organization reporting on voting access and election administration across the U.S. Sign up for Votebeat Pennsylvania’s free newsletter here.

Three legal disputes over mail ballots in Pennsylvania are in line for possible rulings from statewide appellate courts ahead of November’s election. That could mean late-in-the-game changes to the rules that govern vote counting in a crucial swing state.

In Washington County, a Court of Common Pleas judge ruled Friday that the county must notify voters if their mail ballot is at risk of being rejected, so they have a chance to challenge the decision or cast a provisional ballot.

The county and Republican groups involved in the case are currently deciding whether to appeal the ruling to the state’s Commonwealth Court, which is one step below the Pennsylvania Supreme Court.

Another case, in Butler County, featured a conflict between the county and voters represented by civil rights groups. Their disagreement is over whether voters whose mail ballots are rejected can still cast provisional ballots and have them counted.

A common pleas judge ruled that the county did not have to accept provisional ballots cast in these situations. The plaintiffs’ legal team has already appealed the case to Commonwealth Court.

“We want [all voters’] votes to count, we want their voices to be heard, and we don’t think that minor technical mistakes on mail-in ballot envelopes should prevent access to voting,” said Mimi McKenzie, legal director at the Public Interest Law Center, which along with the American Civil Liberties Union of Pennsylvania is representing plaintiffs in both cases.

A third case — which deals with whether voters will have to date their mail ballot return envelopes at all this November — is awaiting a decision from the state Commonwealth Court. That ruling could come any day.

All three cases could have broad implications for how Pennsylvania and its counties treat the thousands of ballots that are rejected each election for technical errors made by voters.

Pennsylvania law requires that voters sign and date the outer return envelope of their mail ballots, and return the ballot in a secrecy envelope, in order for them to be counted.

During the April primary, roughly 8,500 ballots, or 1.22% of those returned, were rejected for failing to meet one or more of these standards, according to an analysis of Pennsylvania Department of State data.

Those numbers are expected to be higher this fall, as more voters will turn out to vote in the presidential election and opt to cast their ballots by mail. Election experts note that general-election voters can be more prone to errors, since they are often not as up to date on the latest requirements as more-engaged primary voters.

Butler County case deals with a question about provisional ballots

The issue in the Butler County case is whether voters who make an error with their mail ballot are entitled to a second chance to have their vote counted.

The ACLU and the Public Interest Law Center sued Butler County in late April following the primary election on behalf of two voters whose provisional ballots were rejected by the county.

The voters had tried to vote by mail, but neglected to put their ballots in a secrecy envelope before placing it in the outer return envelope. After they returned their ballots, they were notified by the county that the ballots would not be counted.

The voters then attempted to cast provisional ballots in person at their polling places on election day, but the county declined to count them. Provisional ballots are used by voters at polling places whose eligibility is in question but who still want to vote. Those ballots are counted only after the voter’s eligibility is confirmed, including a check to make sure no mail ballot from that same voter has already been counted.

The ACLU and Public Interest Law Center argued that by refusing to let the two voters cast provisional ballots, the county had misinterpreted a section of the state’s election code that says a provisional ballot should not be counted if the voter’s absentee or mail ballot has been received by the county on time.

The organizations argued that when that section is read in context, it is clear that the law’s intent is to prevent multiple ballots being cast by the same voter. A rejected mail ballot, they argued, should not be considered cast, because it was never tabulated.

The argument is similar to one made by the ACLU in Delaware County in 2023. There, the organization ultimately succeeded in getting a local court ruling in its favor, which directed the county to count the provisional ballots of its clients. The case was not appealed to the Commonwealth Court, and thus did not set precedent for the entire state.

But in Butler County, Court of Common Pleas Judge S. Michael Yeager ruled earlier this month that the organizations’ argument was “simply not persuasive.” He added that while he was sympathetic to the voters’ argument, ultimately it was an issue the legislature should address.

“The court would urge the legislature to consider the situation of the petitioners, to develop and implement a procedure for those who returned effective ballots to correct same to ensure full participation as possible in the voting franchise,” he wrote.

In other words, he believes state law would need to change to explicitly allow voters who cast a provisional ballot in this situation to have that ballot counted.

After the ACLU and Public Interest Law Center appealed the decision, the Commonwealth Court ordered all parties to submit their written arguments by Aug. 23.

“I think the Commonwealth Court is very much aware of the various cases that have great importance for the November election,” McKenzie said. “It’s all but guaranteed in this [case] that no matter which way they rule at the appellate court, the case will be appealed to the Pennsylvania Supreme Court. Obviously it’s really important to have this issue resolved prior to the November election.”

A definitive decision from the Commonwealth Court or state Supreme Court could dictate how these kinds of provisional ballots are treated statewide in November, regardless of how individual counties have decided to count them in the past.

Washington County case involves voters’ right to know they made an error

The Washington County case also involves what happens after a voter submits a faulty mail ballot, but the dispute is over the county’s duty to tell them about it.

Before the primary election, the Republican majority on Washington County’s board of elections opted not to notify voters of mistakes with their mail ballot that would cause their votes to be disqualified, such as a missing date or signature, or being returned without a secrecy envelope.

Pennsylvania’s Supreme Court has already ruled that it’s up to counties to decide whether they reach out to voters to let them know their ballot has an error and give them an opportunity to fix it, a process called “notice and cure”; some do this, and some, like Washington, don’t.

But unlike other counties without notice and cure policies, when Washington County received a mail ballot back from a voter, it used only generic codes in the state’s ballot tracking system to indicate the ballot had been received, rather than more specific codes that could indicate whether there is an issue that prevents the ballot from being counted. These codes generate distinct emails to voters, and the more specific codes would have generated emails that informed voters their ballots were at risk of rejection.

Ultimately, 259 ballots were rejected by the county during the primary for issues with a signature or date on the outer envelope, or being returned without an inner secrecy envelope.

The ACLU and Public Interest Law Center sued the county — on behalf of seven voters, the local NAACP branch and the Center for Coalfield Justice — arguing that by not informing the voters that their ballots were at risk of rejection, the county had violated the voters’ constitutional due process rights and denied them the opportunity to challenge the decision or cast provisional ballots.

The Court of Common Pleas judge hearing the case, Judge Brandon Neuman, ultimately agreed with the organizations, writing that under the state Election Code, voters have a right to challenge the decision by a county board of elections to reject their ballot.

And if voters don’t know that their ballot is at risk of being rejected — as was the case under the county’s policy — they would not have the opportunity to challenge the decision or cast a provisional ballot, Neuman wrote.

He ordered the county to change its process for what codes the county uses when receiving ballots, so voters better understand that their ballot is at risk of rejection.

It’s now up to the county and Republican groups intervening in the case to decide whether to appeal to Commonwealth Court — where a ruling could have statewide impact.

Nick Sherman, the Republican chair of the county’s board of commissioners, did not return calls or emails seeking comment, but told the Associated Press earlier this week that he disagreed with the ruling and that the county hadn’t yet decided whether to appeal. No appeal had been filed as of Thursday morning.

The Pennsylvania GOP and the Republican National Committee did not reply to a request for comment.

Conflict over date requirement on envelopes continues

Most counties already allow voters to cast provisional ballots in person if their mail ballots are rejected, so any new statewide precedent that emerges from the Butler County case would likely not affect as many voters as other pending mail ballot cases.

A ruling with broader statewide impact is more likely in the Washington County case, as other counties also do not provide notice to voters when their ballots are flagged for rejection.

But perhaps the one that could have the widest potential impact is due for a ruling any day now.

That’s the third case brought by the ACLU and Public Interest Law Center, and it seeks to end enforcement of the requirement that voters write the date when they complete their mail ballot return envelope.

More than 4,400 of the 8,500 ballots rejected during the April primary were for dating errors. So if the plaintiffs succeed in getting the date requirement waived in time for the November election, it would sharply reduce the number of ballots at risk of rejection, and decrease the need for the “notice and cure” procedures and provisional-ballot voting that are at issue in the Washington and Butler county cases.

Oral arguments in the ballot dating case were heard by Commonwealth Court earlier this month.

“Voting is not supposed to be a gotcha kind of game where, oh, you make a mistake, too bad, you only get one shot at this,” McKenzie said. “That doesn’t make sense.”

Supreme Court seeks to speed up resolution of election cases

After years of complaints that the courts have not taken enough notice of how their case schedules affect the election calendar, the Pennsylvania Supreme Court issued an order that would tighten deadlines and speed up election cases this fall.

A temporary order issued Tuesday shortens the appeal period for Election Code issues from 10 days to three days, including weekends. It also orders that briefs be submitted within 24 hours, bars litigants from submitting replies to those initial briefs without a court order, and expedites the process for transmitting court records from lower courts to upper courts.

Susan Gobreski, president of the League of Women Voters of Pennsylvania, said the legislature needs to do its part to ensure that the state meets election deadlines, while courts need to resolve disputes in a timely manner.

The state’s split legislature has been unable to pass legislation that would help the state avoid conflicts with federal election deadlines this fall. While a bipartisan bill passed the state House earlier this summer, the Republican-controlled state Senate has yet to vote on the measure.

“So it’s very understandable the Supreme Court took this step to ensure we are compliant” with federal deadlines, Gobreski said. “We really can’t afford a mess this fall.”

Carter Walker is a reporter for Votebeat in partnership with Spotlight PA. Contact Carter at cwalker@votebeat.org.

New challenge to Pennsylvania mail-ballot rules hinges on state constitutional provision

2024-08-02T14:13:29+00:00

Votebeat is a nonprofit news organization reporting on voting access and election administration across the U.S. Sign up for Votebeat Pennsylvania’s free newsletter here.

The date that voters are required to write on their mail ballot envelope serves no real purpose and should be disregarded as a basis for accepting those ballots, lawyers argued Thursday in a pivotal case that could substantially change the rules for voting by mail in Pennsylvania. Republican lawyers, however, defended the law, saying the date could be useful in checking for vote fraud.

The state’s Commonwealth Court heard arguments in a case brought by the American Civil Liberties Union of Pennsylvania and the Public Interest Law Center, on behalf of voting-rights groups, that seeks to end enforcement of the requirement in state law that voters write the date they complete their mail ballot on the return envelope.

Thousands of voters each year have their ballots rejected because they failed to write the date, or they write an improper date. More than 4,400 were rejected for this reason in Pennsylvania’s most recent primary. The issue has been litigated continually since no-excuse mail voting was introduced in the state in 2020.

While courts have gone back and forth on the requirement, this latest challenge differs because it focuses on a previously untested theory — under a state constitutional provision — that the plaintiffs feel is much stronger than previous arguments. The case could be the last legal avenue to challenge the dating requirement. But it could also backfire and imperil no-excuse mail voting altogether, because of the way the law is written.

That provision the plaintiffs are citing in their case is a clause in the state constitution that says “elections shall be free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.”

“This case is about the repeated violations of the free and equal elections clause that is driving mass disenfranchisement in each election,” ACLU attorney Stephen Loney said in his opening remarks.

Does the date on an envelope matter for election administration?

Loney argued that the date on the ballot envelope is simply not relevant enough to be the reason for disqualifying a ballot. It is “unmoored to any government interest,” he said. He pointed out that in a previous lawsuit the ACLU argued in federal court, NAACP v. Schmidt, election directors from around the state agreed that the handwritten date serves no function for election administration.

Mail ballot return envelopes have barcodes on them, which are scanned to record both the time when the ballot is sent to the voter and when it is received back by the county. Counties use this method, not the handwritten date, to determine if a ballot was received on time.

So if the state can’t show that it has a compelling interest in imposing this restriction to voting, Loney argued, the free and equal elections clause bars it from rejecting ballots for that reason.

The Department of State’s attorney agreed, even though the department is technically a defendant in the case.

“No county election board in Pennsylvania uses the handwritten date for any purpose,” said the attorney, Michael Fischer, reflecting a position long held by the department, which has declined to defend the requirement in other legal cases.

John Gore, an attorney representing the Republican National Committee and Pennsylvania GOP, which intervened in the case to defend the requirement, argued that the date does serve a purpose.

Gore said the date can serve as a “backstop” measure to know when the ballot is returned in the event the system used to scan ballots malfunctions. He also said that the date could be used to determine if a ballot was fraudulently cast — for instance, if a ballot envelope comes in from a person who has died, but the date on it is after the day they died.

Gore also agreed with a line of questioning raised by Judge Patricia McCullough, one of five judges hearing the argument Thursday.

“We have rules about dating checks and other important documents,” McCullough said to Fischer earlier in the hearing. “Apparently the legislature thinks voting is important.”

Gore agreed that signing and dating of the envelope signified the “solemnity” of the act.

McCollough pressed Loney and Fischer on how the dating requirement was different from other requirements — like signing the envelope or placing the ballot in an inner secrecy envelope — and why the court should single out the date requirement as unenforceable.

“Unlike the date, the signature serves an important government function,” Fischer responded, explaining that it helps counties determine that the ballot returned to them was voted by the person it was sent to.

The secrecy envelope, too, serves a purpose, the Department of State and ACLU lawyers argued, which is to preserve the privacy of a voter’s selections.

In the hearing and later, Loney argued that the notion of the date requirement being a tool to guard against fraud has been repeatedly debunked.

An oft-cited example, which Loney addressed, was an instance from Lancaster County when a woman voted a mail ballot for her deceased mother, and returned it with a date written on the envelope that was after the mother had died. But Loney noted that he deposed the county’s election director about this incident during the NAACP litigation, and the director said the handwritten date was not necessary to determine the ballot was fraudulent.

Gore countered that using a handwritten date to determine if a ballot is fraudulent is important not just from the perspective of whether it should be counted, but also to provide evidence for a prosecutor looking to prove guilt.

Loney dismissed that argument.

“You might dream up scenarios where a prosecutor prosecuting voter fraud would have whatever date was written as a piece of evidence in that case,” Loney told Votebeat after the hearing. “But that doesn’t make it necessary to disqualify thousands of voters who simply trip over this requirement in every election.”

Gore declined to respond to a reporter’s questions after the hearing.

If the date requirement falls, would all of Act 77 have to go?

Another major point of contention in the hearing was whether a ruling for the plaintiffs would bring an end to no-excuse mail voting altogether.

The 2019 law that enacted no-excuse mail voting, Act 77, contained language that would void the entire law if any of its provisions are held invalid.

Republicans argued that if the court found the dating provision violated the free and equal elections clause and thus is invalid, then it would logically follow that all of Act 77 would have to go as well.

McCollough, a conservative who ran unsuccessfully for the state Supreme Court last year, appeared to agree.

“I don’t see how you get around it no matter how you couch it,” she said when Fischer addressed the issue.

Fischer and Loney argued that what the plaintiffs wanted was not strictly to “invalidate” the dating requirement, but rather a ruling that it could not be used by counties as a reason to reject a ballot.

The Commonwealth Court has previously rejected the premise that the entire law should be voided if the dating requirement is nullified.

It’s unclear when a ruling in the case will come, though Loney said the court had been moving it along swiftly thus far. A quick series of rulings in the case might resolve the issue in time to affect voting in the November presidential election.

“Everyone expects it to end up in front of the [Pennsylvania Supreme Court], no matter who wins,” he said.

Carter Walker is a reporter for Votebeat in partnership with Spotlight PA. Contact Carter at cwalker@votebeat.org

Another change to Pennsylvania mail ballot envelopes: Full year will be preprinted

2024-07-18T17:30:00+00:00

Votebeat is a nonprofit news organization reporting on voting access and election administration across the U.S. Sign up for Votebeat Pennsylvania’s free newsletter here.

Update, July 19, 11:55 a.m.: This story was updated with additional comments from Secretary of the Commonwealth Al Schmidt to clarify his interview.

The Pennsylvania Department of State is hoping another change to mail ballot return envelopes will eliminate the chance of ballots being rejected this November because of voters failing to write in the year completely.

In a directive earlier this month, the Department of State told counties that they should now preprint ballot return envelopes with the full, four-digit year in the date field, leaving voters to fill in just the month and day alongside their signature.

“We conducted an analysis after this election of why ballots were rejected,” said Al Schmidt, secretary of the commonwealth. “We didn’t see a significant number of ballots missing the full year, but there were some, and every vote is precious in every election.”

It’s the second modification to the envelopes since the 2023 municipal elections, as state officials try to cut down on the number of ballots rejected for lacking a properly filled out date and resolve differing interpretations among counties on whether to count these ballots. The move will also eliminate a risk of lawsuits in November over whether incomplete-year ballots should be accepted or rejected.

Pennsylvania law requires that voters sign and date the outer return envelope of their mail ballots in order for them to be counted, but the date requirement has proven to be tricky for voters, and has drawn challenges from voting rights advocates. Roughly 8,500 ballots, or 1.22% of those returned, were rejected during the April primary for lacking a proper date or signature or for being returned without a secrecy envelope, according to an analysis of Department of State data.

With the November presidential election again expected to be close in Pennsylvania, even a small number of ballots rejected for technicalities like lacking a date could prove consequential for the outcome.

Problems with year show up in 2024 primary

In November 2023, the Department of State announced a redesigned ballot return envelope that it hoped would cut down on the number of rejected ballots. The new design had a shaded area where a voter would sign and date the envelope, to make it stand out, and had the first two digits of the year — “20″ — prefilled to deter voters from writing the wrong year by mistake. The state also changed the color of the inner secrecy envelope a voter must use to yellow and added watermarks to identify it.

In the April primary, the first election in which those envelopes were used, fewer ballots were rejected for voter errors. But as completed mail ballots came in, election officials around the state started to notice that many of the envelopes they were receiving had a problem: Voters hadn’t filled in the last two digits for the year in the date field.

After several counties reached out to the Department of State about how to handle these ballots, Deputy Secretary for Elections Jonathan Marks sent an email to counties advising them to count ballots even if the envelope didn’t have the last two digits of the year.

“It is the Department’s view that, if the date written on the ballot can reasonably be interpreted to be ‘the day upon which [the voter] completed the declaration,’ the ballot should not be rejected as having an ‘incorrect’ date or being ‘undated,’” Marks wrote on April 19.

Not all counties followed that advice, however. At least 22 counties opted not to count ballots missing the “24,” according to a Votebeat and Spotlight PA survey of elections officials.

Pennsylvania mail in ballot for the 2024 primary election on Tues., April 23, 2024.

An analysis of Department of State data found that the overall rejection rate for mail ballots went down following the redesign, compared with the 2023 primary. But counties that Votebeat and Spotlight PA identified as choosing not to count ballots missing the “24″ had virtually no decrease in the rejection rate as a group, and most saw an increase.

The Department of State said its analysis showed older voters were more likely to return ballots with errors that led them to be rejected.

This means the decision to prefill the full year is likely to prevent voters from making the mistake and further reduce the number of ballots rejected over issues with the date.

It would also resolve disparities among counties in how these ballots are handled, an issue that has sparked lawsuits on both sides of the decision.

Centre and Luzerne counties were sued, by the county GOP and a GOP candidate, respectively, for counting the ballots. The Centre County case was dismissed at the county court level on technical grounds, and the Luzerne case is currently being appealed to the state Supreme Court.

The Department of State argued in the Luzerne lawsuit that writing a year on the ballot was not necessary to satisfy the dating requirement. Asked why the state didn’t just do away with the year field altogether, Schmidt said that could be an option, but including the year makes it more clear when the ballot was voted and prevents further litigation over the issue in November.

Meanwhile, Lancaster County was sued for not counting the ballots, by the Pennsylvania Alliance for Retired Americans. But the group dropped its lawsuit last week after seeing the new Department of State directive on preprinting the full year.

Schmidt added that the litigation over this issue also motivated the department to issue the directive.

“With the presidential election ahead of us, and very strict deadlines for certification of election results at the county and state level, we thought it would be important to do our part to keep counties out of all this litigation,” he said.

Schmidt also noted that it took more than two months after election day for an appeals court to rule in the Luzerne case, which would have pushed the state well past the federal certification deadline had it been initiated after the November election.

“This is certainly a desired outcome, and much faster than going through litigation,” said Nina Beck, an attorney with Fair Elections Center, a Washington, D.C.-based nonprofit focused on voting rights, which represented the retiree group in the Lancaster case.

“We’re happy to have a uniform mandate across the state.”

How counties will handle the change

Election officials said it had become clear in recent weeks that the department was moving toward making a change to the date field.

Some counties were considering printing the full year on the envelope even before the directive.

Abigail Gardner, communications director for Allegheny County, home to Pittsburgh, said the county was talking to the company that prints its mail ballot envelopes about the feasibility of adding “24″ to envelopes that had already been printed.

“It was just obviously one of the biggest pain points for ballot errors, so it seemed like a smart fix,” she said.

Schmidt confirmed that other counties had been seeking permission from the department to preprint the full year.

Costs are likely to be low, Fayette County elections director Marybeth Kuznik estimated. Her county uses the same printing company as Allegheny and Philadelphia, Phoenix Graphics. She said that the directive was not a surprise.

“At this point, there have been so many changes and court cases, nothing surprises me anymore,” she said. She’d like the legislature to take up the issue to make sure a mail ballot envelope requires only critical information from the voter.

“We know when we mailed [the ballots] and when we get it back. The date in between is not useful to us,” Kuznik said.

A pending lawsuit filed in May by the ACLU of Pennsylvania and the Public Interest Law Center seeks to invalidate the dating requirement altogether, but for now voters will still need to write at least the month and day on their return envelope.

As counties move forward with adding “24″ to old envelopes or printing new ones, they will need to estimate how many envelopes they’ll need for a given calendar year, so they don’t waste money on envelopes that can’t be used in future years.

While state law spells out how many ballots a county must provide for in-person polling places, it doesn’t specify a number for printing envelopes, Beaver County elections director Colin Sisk said.

Sisk said he imagines most counties will err on the side of over-ordering.

But overall, Sisk said, any time counties can get direction that has the force of law, it helps streamline processes and create more uniformity across the state.

“The most important thing we can have is a consistent approach across the counties,” he said.

Now, he said, it’s just a matter of “getting voters to know they still need to put the month and the day.”

Carter Walker is a reporter for Votebeat in partnership with Spotlight PA. Contact Carter at cwalker@votebeat.org.

Redesigned envelope leads to fewer rejected ballots, but a new type of error sticks out

2024-05-31T16:09:49+00:00

Votebeat is a nonprofit news organization reporting on voting access and election administration across the U.S. Sign up for Votebeat Pennsylvania’s free newsletter here.

Fewer mail ballots were rejected for voter errors overall in this year’s primary election, a Votebeat and Spotlight PA analysis shows, an achievement that the state credits to a modified ballot return envelope designed to help voters avoid mistakes.

But state data points to a new type of voter mistake affecting ballot rejections. And the way counties have diverged in their response to this error has opened up a new avenue for litigation ahead of November’s presidential contest.

Compared with the 2023 primary, counties rejected 9.6% fewer ballots for the kinds of errors that the redesign sought to address: a missing date or signature on the return envelope, an incorrect date, or ballots returned without an inner secrecy envelope. (See the methodology for Votebeat’s data analysis below this article.)

“I think it is clear that the ballot redesign resulted in fewer voters making errors,” Secretary of the Commonwealth Al Schmidt said.

Pennsylvania’s election code requires that mail voters place their ballot in a secrecy envelope before placing it in the return envelope. They must then sign and date the return envelope.

But since Pennsylvania implemented its no-excuse mail voting law, Act 77, in 2020, thousands of ballots have been rejected because of procedural errors by voters, such as missing dates and signatures. Courts have gone back and forth on which errors should cause a ballot to be rejected. So far, the divided legislature hasn’t successfully stepped in to clarify the rules.

After the 2023 municipal elections, the Department of State announced a redesigned ballot return envelope that it hoped would cut down on the number of rejected ballots. The April 23 primary was the first to see that envelope used.

But with the redesigned envelope, officials noticed a new error cropping up: voters who put a date on their envelopes but left the year only partially filled in. Some counties rejected those ballots on that basis, while others, heeding advice from state officials, accepted them.

Redesign made date and signature box stand out

The Department of State’s redesign of the mail ballot return envelope sought to address four of the most common errors that require counties to reject ballots: a missing date, an incorrect date, a missing signature, or a ballot not returned in a secrecy envelope.

In the new design, the area where a voter is to sign and date the envelope is shaded, to make it stand out, and it has the digits “20″ prefilled for the year, to prevent voters from writing their birth date. Secrecy envelopes were also changed to yellow and included new watermarks to make them stand out.

Overall, the rate of ballots rejected for these reasons, as a proportion of all mail ballots returned, went down, which officials claim as success for the new design. But when the categories are broken apart, the success of the effort is less clear.

The rejection rate for ballots lacking a date or being returned without a secrecy envelope went down. But the rates for those returned with an incorrect date or no signature went up, and those errors now represent a greater proportion of rejected ballots.

In the 2023 primary, they were the third and fourth most common errors that led to ballot rejection. Now they are No. 1 and 2. Aside from voter errors, the top overall reason for rejection in both elections was ballots that arrived after election day.

There are some limitations to the more detailed data. Schmidt noted that the system counties use to track mail ballots allows them to enter only one code denoting the reason for rejection. So if a ballot lacks both a signature and a date, they can record it as rejected for only one of those reasons.

He added that there is not a consistent method across counties for what order to check for errors, and which code to use first. Some counties might also change the order in which they check the fields from year to year.

“That’s why the overall number is most reliable in my opinion,” he said.

In the 2023 primary, 1.35% of returned ballots were rejected for the four reasons that the redesign sought to address. That rate dropped to 1.22% for April’s primary, according to Votebeat and Spotlight PA’s analysis. In total, just under 16,000 ballots were rejected, for any reason.

A date detail: The last two digits of the year

One feature of the redesigned envelope was a date field with the first two digits of the year — “20″ — prefilled. But as election day approached, voters were returning ballots without writing “24″ after the prefilled “20.”

On the Friday before the election, Deputy Secretary for Elections Jonathan Marks sent an email to counties advising them to count ballots even if the envelope didn’t have the last two digits of the year. Courts have interpreted the state’s dating requirement to mean it needs to have a date between when the ballot was sent to the voter and election day.

Pennsylvania mail in ballot return envelope for the 2024 primary election.

Not all counties followed that advice.

Colin Sisk, Beaver County’s election director, said that the county viewed the department’s choice to prefill the “20″ in the year field as an indication that the voter was meant to fill in the year section. He also said that if a voter last year had only written “20″ for the year, the ballot likely would have been rejected, as it would have been assumed they meant 2020. So for consistency, the county chose not to accept the ballots.

The advice also came late in the election cycle.

“I know a lot of us (directors) were like ‘Holy crap, this is late’ and ‘Holy crap, this change is something that can be litigated,’” Sisk said of his reaction when he received the email on April 19, four days before the election.

Sisk was right. A candidate sued Luzerne County over its decision to count the ballots, and the Centre County GOP did the same there.

The Court of Common Pleas judge hearing the Centre County case dismissed it Friday as improperly filed, without addressing the county’s decision to count the ballots. In Luzerne County, the judge ruled the county was correct to count the ballots, but that decision is now on appeal in Commonwealth Court.

Counties were split over whether or not to accept the ballots, and that decision appears to have had an impact on their rejection rate.

Votebeat and Spotlight PA looked at 36 counties that had suitable data to determine the change in rejection rates from year to year. Among them, counties that decided to count ballots with a missing “24″ for the year had lower average rejection rates than in the previous primary election, while counties that chose not to count these ballots on average had virtually no change in the rejection rate, and most saw an increase.

“I think they were trying to make it easier for people so they didn’t put their birth year, but it confused people in my opinion,” said Karen Lupon, chief clerk and election director for Jefferson County, although she added she thinks the redesign was successful in reducing “naked ballots” that were returned without a secrecy envelope.

November is the next big test

The Department of State would not say whether it plans to make any changes to the envelope before the November election as a result of the issue.

Whether the lower rejection rate holds in November will be the next big test, both for the redesigned envelope and recent educational efforts from the department, campaigns, and other groups looking to inform them on how to properly cast their ballot.

“It’s a good sign to see rejections going down,” said Kyle Miller, a policy advocate with the nonpartisan group Protect Democracy. “I’m really interested to see what happens in the general, when you have more casual voters.”

Compared with general election voters, those who participated in April’s primary — during which many high-profile races were uncontested — were more likely to be tuned into the rules and educational efforts.

At least one county foresaw the missing “24″ as an issue. In Bucks County, election officials opted to preprint the full year on the ballot, rather than just “20″ as the Department of State recommended.

“As a result, I think we saw lower numbers of errors on the date than we would have,” Bucks County Solicitor Amy Fitzpatrick said at an April 30 election board meeting.

Lycoming County may follow suit. Its election director, Forrest Lehman, said he has been in contact with the vendor who prints his return envelopes to ask if it would be possible to add the “24″ on envelopes that were already printed.

The issue could be moot come November if the ACLU of Pennsylvania and Public Interest Law Center prevail in their lawsuit seeking to nullify the requirement that voters write a date on the return envelope.

Carter Walker is a reporter for Votebeat in partnership with Spotlight PA. Contact Carter at cwalker@votebeat.org.

About this Data

The Department of State calculated the reduction in the rejection rate from the 2023 primary to the 2024 primary to be 13.5%. The department used a method of analysis that adjusted rejection figures from the 2023 primary to match what they likely would have been had that election seen the same turnout as 2024. After consultation with several political scientists who regularly analyze election data, Votebeat and Spotlight PA opted to use a different method that directly compared the actual rejection percentage from each election, though the political scientists said both methods are legitimate. Votebeat and Spotlight PA’s calculation also included ballots marked with “pending” codes in the state’s mail ballot tracking system, which the Department of State did not. All but one county had certified its election at the time of Votebeat and Spotlight PA’s analysis, which was not the case at the time the department opted to exclude “pending” ballots.

Pennsylvania’s rule on dating mail ballots faces new challenge in state court

2024-05-29T18:30:00+00:00

Votebeat is a nonprofit news organization reporting on voting access and election administration across the U.S. Sign up for Votebeat Pennsylvania’s free newsletter here.

Voting rights groups are trying again to invalidate Pennsylvania’s requirement that mail voters write a date on their ballot return envelope, following a recent defeat in federal court.

The ACLU of Pennsylvania and the Public Interest Law Center filed a lawsuit in Commonwealth Court on Tuesday against Secretary of the Commonwealth Al Schmidt, this time arguing that the election code’s requirement that voters write the date on their ballot envelopes violates the state constitution’s clause on free and equal elections.

The suit marks a new front in the long-running effort by voting rights groups to invalidate the date requirement, which they argue needlessly disenfranchises too many voters each cycle. The ACLU previously argued in a years-long federal case that the requirement violated the U.S. Civil Rights Act.

Under current interpretation of state law, county election officials must reject any mail ballot that lacks a date or has an incorrect date on its return envelope. Of the approximately 715,000 mail ballots returned by voters in April’s primary election, more than 4,400 were rejected for this reason. That number could greatly increase in November, when turnout is expected to be much higher.

“There are thousands of voters whose ballots are at stake,” said Ben Geffen, senior attorney at Public Interest Law Center. “People just really don’t like to think they followed the rules and, for some reason of red tape or some technicality, their vote doesn’t get counted. When that happens to you, it’s very upsetting.”

Pennsylvania’s state constitution affirms a right to vote

The ACLU and the Public Interest Law Center are suing on behalf of Black Political Empowerment Project, POWER Interfaith, Make the Road Pennsylvania, OnePA Activists United, New PA Project Education Fund, Casa San José, Pittsburgh United, the League of Women Voters of Pennsylvania, and Common Cause Pennsylvania.

A spokesperson for the Department of State told Votebeat and Spotlight PA on Wednesday that the agency was reviewing the petition, but reiterated its view that the dating requirement is unnecessary.

“In the years of litigation over this issue, it has become irrefutably clear that the handwritten date serves no function in the administration of Pennsylvania’s election,” Matt Heckel, press secretary for the department, said. “As a result, the Department has consistently argued in court that voters should not be disenfranchised for failing to write or incorrectly writing a date that serves no function.”

The suit also named Philadelphia and Allegheny counties as defendants.

Because the case is being filed against Schmidt — a state official — the Commonwealth Court will hear the case initially, and a ruling there could set a standard statewide. Geffen is optimistic that, given the appellate court’s track record of expediting election related cases, a decision could come in time for the November election.

When Pennsylvania’s no-excuse mail voting law, Act 77, was passed in 2019, it used much of the same language as the state’s absentee voting statute. Both laws require voters to write a date on their return envelope, and courts have interpreted that to mean that date must be between the day the ballot was sent out and election day. Counties reached varying decisions during the April primary as to whether a lack of “24″ in the partly pre-filled space for the year constituted an incorrect date, or if it was simply incomplete and could be counted under current case law.

As use of mail voting expanded under Act 77, so did the number of ballots rejected for lacking a proper date on the envelope.

The organizations involved in the lawsuit are arguing that under the state constitution, this requirement is invalid. The argument relies on a constitutional provision that says “elections shall be free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.”

Geffen said this affirmative right to vote in the state constitution gives the challenge a better chance of success than cases brought in federal court, since the U.S. Constitution does not contain an affirmative right to vote.

“The state courts for decades have interpreted the free and equal election clause as overriding highly technical requirements in the election code that block people’s ballots from being counted,” he said. “I think that’s exactly the situation we see here.”

Pennsylvania’s appellate courts have already shown that they are amenable to this argument. In 2022, state and national GOP groups brought a case, Ball v. Chapman, against the Department of State over its guidance to counties that they should count undated or incorrectly dated ballots if they are received on time. A majority of the Pennsylvania Supreme Court justices agreed that a challenge under the clause would be successful.

“Failure to comply with the date requirement would not compel the discarding of votes in light of the Free and Equal Elections Clause,” Justice David Wecht wrote in a footnote.

Derek T. Muller, an election law professor at Notre Dame Law School, said state courts have become more open to these types of challenges in recent years, but even with provisions like Pennsylvania’s that affirm a right to vote, courts still need to weigh the interest of the state in setting rules to ensure elections run smoothly against the interest of voters to easily exercise their right.

“Strictly speaking, any law abridges the right to vote,” Muller said. “For instance, if you say you only have 12 hours [to vote] or have to be a resident of that state for 30 days prior to the election.”

Still, the footnote in the Ball case “does seem to suggest plaintiffs have a really good shot here,” he said.

Commonwealth Court challenge could be ‘last remaining option’

The dating requirement has been continually challenged in court since Act 77 was implemented in 2020. Aside from the Ball case, litigants, including the ACLU, have primarily challenged the law in federal courts under a provision in the 1964 Civil Rights Act that was designed to ensure that voters weren’t denied the right to register to vote for reasons “immaterial” to their eligibility.

Several federal judges have sided with that argument, but in March a three-judge panel of the 3rd U.S. Circuit Court of Appeals ruled against it.

The ACLU, which brought that case on behalf of the NAACP and other voting rights groups, has not decided whether it will appeal that ruling to the U.S. Supreme Court, Vic Walczak, legal director of the ACLU of Pennsylvania, said.

The ACLU is also asking the district court judge in the case to allow it to expand on another part of its argument, an equal protection claim, which the 3rd Circuit did not strike down in March.

But if both fail, the ACLU and Public Interest Legal Center’s new free and equal elections claim could be the only path left for legal challenges to the dating requirement, leaving only a legislative fix on the table. State lawmakers have put forward a number of proposals to eliminate the requirement, but none have made it through Harrisburg’s partisan deadlock.

Geffen said the organizations did not want to bring the new claim to the Commonwealth Court while the NAACP case was still in the U.S. district and circuit courts.

“You don’t go to the ultimate backstop argument if there is a different solution that is available,” he said. “In light of that recent decision from the 3rd Circuit, this is the last remaining option to vindicate this right.”

Carter Walker is a reporter for Votebeat in partnership with Spotlight PA. Contact Carter at cwalker@votebeat.org.

Pennsylvania’s redesigned mail ballot envelopes trip up many voters who left date incomplete

2024-04-23T21:47:41+00:00

Votebeat is a nonprofit news organization reporting on voting access and election administration across the U.S. Sign up for our free newsletters here.

A design change Pennsylvania officials made to prevent voters from making a disqualifying error on their mail ballots appears to have backfired.

The issue — voters failing to write the final two digits of the year on the return envelope — is leading some counties to reject ballots in the primary, despite the state’s new advice to count them.

Last fall, the Pennsylvania Department of State announced it was redesigning the state’s mail ballot return envelope, in part to reduce the number of ballots rejected for lacking a proper date, which is required by law. This year’s envelope has “20″ prefilled in the year line and leaves spaces for the voters to fill in the last two digits.

One election director said a “significant” number of voters who returned flawed ballots had not filled in the last two digits of the year, and other election officials around the state echoed that observation.

On the Friday before the election, Deputy Secretary for Elections Jonathan Marks sent an email to counties advising them to count ballots even if the envelope lacks the last two digits of the year.

But the department’s emailed advice does not carry the force of law, and counties are making different decisions about whether to count the ballots. Votebeat and Spotlight PA contacted eight counties and found that Philadelphia, Allegheny, and Delaware counties are counting the ballots, while York, Lycoming, Lancaster, and Snyder counties are rejecting them. Montgomery County said it would make a decision next week.

It’s unclear exactly how many voters will be affected by rejections. Philadelphia said those figures would not be available until Thursday. In Snyder County, 10 of the 21 ballots rejected for dating issues were properly dated except for the last two digits of the year, Election Director Devin Rhoads said.

In Allegheny County, home to Pittsburgh, spokesperson Abigail Gardner said ballots with dating errors were the majority of the county’s mail ballots at risk of rejection, and this specific dating error was an “overwhelming” majority of those. Gardner said that until Friday, Allegheny County had been marking these ballots as improperly dated but changed that determination after receiving Marks’ email.

Lycoming County Election Director Forrest Lehman said his county will reject ballots that lack the final two digits. He added that such ballots make up a “significant” number of the ones his staff was rejecting, though he did not have exact figures.

Reacting to the Department of State’s advice, Lehman said, “I don’t know what they’re basing it on or why they decided to say it at the last minute.”

Did you vote for the first time this year? Tell us how it went.

As part of the 2022 case Marks cited, Ball v. Chapman, the state Supreme Court issued an order on what a proper date for a ballot was. That order defined a proper date by setting a date range with the full, four-digit year. Lehman said he thinks counties will look at that as a signal that all four digits must be included.

Asked about this contradiction with the Ball case, Amy Gulli, director of communications for the Department of State, said Marks’ email “speaks for itself.”

The email also appears to run afoul of Secretary of the Commonwealth Al Schmidt’s promise not to issue any new election-policy guidance to counties within 45 days of an election.

The department said the email did not violate the secretary’s promise, as it was not full guidance but rather an email in response to multiple questions from counties.

Asked if the state would be redesigning the envelopes in response to the problem, Gulli said the department is “continually looking for ways to improve election administration” and “will follow up with the counties on their experience after the primary.”

Whether voters should even be required to write the date on ballot return envelopes has been a subject of debate and litigation since 2020, when Pennsylvania’s mail voting law, Act 77, went into effect. The NAACP, which along with other voting rights organizations being represented by the ACLU of Pennsylvania, is currently seeking to invalidate the requirement in federal court based on a provision from the 1964 Civil Rights Act.

Marian Schneider, senior voting rights policy counsel at the ACLU of Pennsylvania, said the email from the department was a good attempt to keep voters from being disenfranchised.

“If someone wrote 4/17 and didn’t write the year, there’s only one year it possibly could have been written because we know when counties mailed the ballots and when the counties received them,” she said. “What Jonathan is writing is common sense guidance.”

Carter Walker is a reporter for Votebeat in partnership with Spotlight PA. Contact Carter at cwalker@votebeat.org.

Pennsylvania can require voters to put a date on mail ballots, U.S. appeals court rules

2024-03-29T00:21:07+00:00

Votebeat is a nonprofit news organization reporting on voting access and election administration across the U.S. Sign up for our free newsletters here.

A federal appeals court decision upholding Pennsylvania’s rules for voting by mail could mean that tens of thousands of ballots are rejected in this year’s election because they lack a date or are misdated. But the full impact of the ruling is still up in the air while the parties who brought the case decide whether to appeal.

A panel of the 3rd U.S. Circuit Court of Appeals ruled 2-1 Wednesday that a Pennsylvania law requiring mail voters to handwrite a date on the return envelope did not violate a provision of the 1964 Civil Rights Act that’s meant to protect voters from being denied the right to register to vote.

Update April 10, 2024: Voting rights plaintiffs seek new ruling on undated ballots case in federal appeals court

The decision could have broad implications: If plaintiffs appeal to the Supreme Court and justices uphold it, it could become precedent for the entire country, rather than just the jurisdictions in the 3rd Circuit. Such a ruling could limit how the Civil Rights Act applies to requirements for casting a ballot.

And some conservative justices already hinted in an earlier ruling that they’re skeptical of the argument that the date requirement violates the Act. When the court nullified a previous opinion from the 3rd Circuit that ruled such ballots should be counted, three of the court’s conservatives wrote that the lower court’s opinion was “likely wrong.”

The plaintiffs will now need to make a choice about whether it is worth pushing this case forward, or containing the decision to the 3rd Circuit, said Derek Muller, an election law professor at Notre Dame Law School.

“I think there’s a lot of challenges raising it with the Supreme Court if you are the plaintiffs,” he said. “You’ve already got three justices who sketched out a preliminary position against your position, so I just think it’s an uphill battle to go to the court and make that claim now.”

Andy Hoover, a spokesperson for the ACLU of Pennsylvania, which represented the plaintiffs, said, “We are analyzing the ruling and have not made a decision about next steps.”

The Department of State, which was a defendant in the case but took the view that the ballots should not be rejected, said in a statement that it was “reviewing potential next steps” and highlighted recent changes it made to the return envelopes that it hopes will reduce the number of ballots rejected this year.

Even if it is appealed to the U.S. Supreme Court — given where we are in the court’s current term — Muller thinks any decision would be unlikely to come before 2025.

“My guess is this rule will be in place for 2024.”

There may be other action in the courts in the meantime.

Adam Bonin, a Philadelphia-based attorney who regularly works with Democratic candidates, is currently representing a township supervisor candidate in a case tangentially related to the 3rd Circuit appeal.

“I think the majority got it wrong here,” said Bonin, who was also involved in a 2021 case from Lehigh County on the same issue. “This was a remedial statute intended to remove all sorts of barriers to the right to vote. I thought that Congress was very clear that this goes to all the steps” that involve ensuring a vote is counted.

The three-judge panel’s ruling can still be appealed to the full 3rd Circuit by April 10.

For their part, Republicans are embracing the decision as a victory.

“The Court ruling is a gigantic win for Pennsylvania, the nation, and election integrity,” said Chairman Lawrence Tabas of the Pennsylvania GOP, which was one of the intervening defendants in the case.

Wednesday’s ruling, from a three judge panel of the 3rd U.S. Circuit Court of Appeals, centered on whether the date requirement under Pennsylvania election law violated a part of the 1964 Civil Rights Act known as the “materiality provision.”

The majority on the panel ruled that the provision only applies when the state is determining who may vote.

“In other words, its role stops at the door of the voting place,” Judge Thomas Ambro, an appointee of former Democratic President Bill Clinton, wrote for the majority. “The Provision does not apply to rules, like the date requirement, that govern how a qualified voter must cast his ballot for it to be counted.”

Mike Lee, executive director of the ACLU of Pennsylvania, said in a statement that if the decision stands, thousands of Pennsylvanians could lose their vote over a “meaningless paperwork error.”

“The ballots in question in this case come from voters who are eligible and who met the submission deadline,” Lee said. “In passing the Civil Rights Act, Congress put a guardrail in place to be sure that states don’t erect unnecessary barriers that disenfranchise voters. It’s unfortunate that the court failed to recognize that principle. Voters lose as a result of this ruling.”

Ruling distinguishes registration barriers from voting rules

Unlike the last time this question was before the 3rd Circuit, the court split on the issue, voting 2-1 against the plaintiffs.

Ambro, along with Judge Cindy Chung — an appointee of Democratic President Joe Biden — took the view that the materiality provision is limited to documents related to a voter registering to vote, which would “restrict who may vote.”

“It does not preempt state requirements on how qualified voters may cast a valid ballot, regardless what (if any) purpose those rules serve,” the opinion read.

Much of the decision came down to whether the provision deals only with documents related to registering to vote, or whether its reference to “other acts requisite to voting” applies to other documents voters may encounter when trying to cast a ballot. Ambro and Chung argued that when the materiality provision is read in context with the sentences around it, along with the discussion among legislators who wrote it, it was clear that it related only to registration documents.

They also argued that rejecting undated or improperly dated ballots did not take away the voter’s ability to vote and that states had the freedom to make rules concerning how votes are to be cast, such as rejecting mail ballots that have identifiable markings on the secrecy envelope.

“A voter who fails to abide by state rules prescribing how to make a vote effective is not “den[ied] the right . . . to vote” when his ballot is not counted,” Ambro wrote. “If state law provides that ballots completed in different colored inks, or secrecy envelopes containing improper markings, or envelopes missing a date, must be discounted, that is a legislative choice that federal courts might review if there is unequal application, but they have no power to review under the Materiality Provision.”

Judge Patty Schwartz — an appointee of former Democratic President Barack Obama — disagreed, noting that the date on the mail ballot return envelope is in relation to a declaration that states “I hereby declare that I am qualified to vote in this election,” which makes it fall under the provision.

She also pointed out that the 1964 Civil Rights Act defines “voting” as “all action necessary to make a vote effective including, but not limited to, registration or other action required by State law prerequisite to voting, casting a ballot, and having such ballot counted and included in the appropriate totals of votes cast.”

When this section is read in conjunction with the materiality provision, she argued, the dating requirement becomes subject to that provision.

How we got here

Wednesday’s decision came as part of an appeal of a November 2023 ruling from U.S. District Judge Susan Baxter in the Western District of Pennsylvania.

Shortly after the 2023 election, she ruled that the whether the ballot envelope had a date was “immaterial” to a voter’s eligibility, and that ballots should not be rejected over what is essentially a technicality.

“There are many reasons to date a document,” Baxter wrote at the time, adding, “Dates may also be wholly irrelevant, as in this case. The requirement at issue here is irrelevant in determining when the voter signed their declaration.”Her ruling was just part of a string of disputes over whether to count undated or incorrectly dated mail ballots that have been before the courts since the state’s no-excuse mail voting law, Act 77, passed in 2019.

That law required that voters sign and date the outer return envelope.

A 2021 case out of Lehigh County challenged the provision, citing the 1964 Civil Rights Act’s materiality provision.

In 2022, a separate three-judge panel of the 3rd U.S. Circuit Court of Appeals unanimously agreed in the Lehigh case that the date issue was immaterial, but the U.S. Supreme Court nullified the ruling later that year, after one of the candidates in the race in question conceded.

That left the question up in the air again ahead of the 2022 midterm election, until the Pennsylvania Supreme Court ruled on Nov. 1 that counties should not count the ballots if they were missing a date. The court defined an incorrectly dated ballot as one that fell outside of the time range for acceptable ballots, Sept. 19 through Nov. 8, 2022, the first day mail ballots were sent out through the day of the election.

In practice, this has often led to counties rejecting ballots that they know were cast in the correct time period.

Roughly 8,000 ballots were rejected during the 2022 midterm election for lacking a proper date or signature on the outer return envelope, according to the Pennsylvania Department of State.

A Votebeat and Spotlight PA analysis of data from three counties in 2022 — Philadelphia, Allegheny, and Erie — found voters submitting the flawed ballots were more likely to come from communities with higher than average non-white populations compared with the overall voting population in the county.The department began being able to track rejections specifically for dating issues in 2023, and said in last November’s election the issue accounted for roughly 2,500 rejections.

Carter Walker is a reporter for Votebeat in partnership with Spotlight PA. Contact Carter at cwalker@votebeat.org.

Court ruling on undated ballots brings confusion as counties certify November election results

2023-11-30T19:54:15+00:00

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In the wake of a long-awaited federal court ruling, Pennsylvania counties are making diverging decisions about whether to count undated and misdated mail ballots cast during the November election.

The ruling was delivered as counties were in the middle of certifying voting results.

Counties are turning to their lawyers, leading to an inconsistent approach in ballot counting that disenfranchises some voters based on where they live.

In at least one county this week, counting the ballots changed the outcome of a local race.

“I certainly, as a former election official, had concerns on the timing,” said Jeff Greenburg, a senior advisor on election administration for the Philadelphia-based nonprofit Committee of Seventy who previously ran elections in Mercer County. “As always, it is not good if some counties are doing stuff one way and others are doing it another way.”

On Nov. 21, Judge Susan Baxter of the U.S. District Court for the Western District of Pennsylvania ruled that the date a voter writes on the envelope they return a mail ballot in is “immaterial” to the voter’s eligibility.

Her ruling was the latest in a series of court decisions going back and forth on whether or not counties must reject ballots that a voter has either failed to date, or has incorrectly marked with a date previous courts have found to be outside an acceptable time range.

The 2019 law that enacted no-excuse mail voting in the commonwealth requires that ballot return envelopes be dated. Voting rights advocates have argued that this violates a key provision of the 1964 Civil Rights Act known as the “materiality provision,” which says voters shouldn’t be disqualified over trivial errors.

“Clearly the ruling was a victory for Pennsylvania voters,” said Kyle Miller, a policy advocate with the nonpartisan group Protect Democracy, “but for it to happen during the official canvass period prior to the certification deadline certainly puts these election directors under stress.”

County election directors must finalize voting results through tasks like adjudicating provisional ballots, recording write-in votes, performing audits, and leaving time for candidates and voters to file objections. When they’re done, the county’s board of elections does a first and second signing of the final results, which is called certification.

Baxter’s ruling came during the middle of this process, and counties have taken different approaches to handling the ballots.

The Department of State advised counties to consult with their lawyers, known as solicitors, Secretary of the Commonwealth Al Schmidt said Tuesday.

Montgomery County’s decision to count the ballots appears to have reshaped the outcome of at least one race. A township supervisor race is now tied as a result of counting a handful of undated and misdated ballots and is headed toward a drawing of lots to decide the victor.

Northampton County held its final certification meeting on the day the ruling came out and did not count the undated or misdated ballots. At the meeting, the board’s solicitor said the ruling was “prospective.”

Lancaster and Dauphin counties, among others, counted the ballots and included them in their certified results.

Yet other counties, including Berks and Chester, opted to delay certification to count the ballots. As of Thursday, those counties’ results remain uncertified.

Timing causes confusion

Washington County was in the middle of the required five-day period between the first and second signing necessary for certification when the ruling came out, Elections Director Melanie Ostrander told Votebeat and Spotlight PA.

“It was frustrating because it goes to the point that the courts don’t understand the election calendar,” she said. “Looking at the date of when it was issued and what we were in the middle of, it wasn’t a good time.”

As in Northampton, Washington County’s solicitor advised that the ruling was “prospective,” Ostrander said, and such ballots should not be counted for the 2023 election. The county certified the results without those ballots included.

“This does provide more opportunity for there to be questions about the legitimacy of the election, not that those claims are founded but just the opportunity for mis- and disinformation and the opportunity for human error,” said Miller of Protecting Democracy.

As of Nov. 30, neither the Republican National Committee nor any Pennsylvania county had appealed the ruling to the U.S. Third Circuit Court of Appeals, though election officials and policy advocates widely expect that to happen.

In a similar case, a federal appeals court in 2022 ruled undated ballots should be counted. That case was thrown out by the U.S. Supreme Court as moot.

State aims to reduce errors with new design

The Department of State announced Wednesday that it has redesigned mail ballot materials to help prevent voters from making such errors, but some county officials said their vendors may have trouble incorporating the new changes.

Many changes focus on the outer envelope, which voters must date and sign.

Fields that voters must fill out, like date and signature, will be highlighted to make them stand out. The first two numbers in the field for the year will also be prefilled “20.” Many ballots are rejected annually because voters mistakenly put their birth year in this field.

The outer return envelope will now be colored to help post office employees more easily recognize it as election mail and deliver it back to election offices more quickly.

The department also changed the color of the secrecy envelope voters are required to put their ballot in from white to yellow. So-called “naked ballots,” or ones that are not returned in the envelope, are rejected by counties.

State officials are also encouraging counties to add a hole punch to the outer return envelopes before they are sent. This will allow workers to more easily see if the secrecy envelope is inside before opening the outer envelope, giving counties the option to warn voters that their ballot could be rejected.

“The Shapiro administration is committed to giving every eligible Pennsylvanian the opportunity to cast their vote and make their voice heard,” Schmidt said in a news release. “Our hope is that these new materials will better assist voters in making sure their completed mail ballot packet is filled out correctly and can be counted.”

According to data from the Department of State, counties reject tens of thousands of ballots each year for lacking signatures, proper dates, or not being returned on time. Of the 17,000 mail ballots rejected in this year’s primary, nearly half were declined for date or signature issues.

Forrest Lehman, election director in Lycoming County, said that it can be hard to change voter behavior through design alone, but he thinks the leading “20″ in the date field will help.

Department of State officials said counties must adopt the redesigned ballots.

Lehman said counties may have problems doing so because of constraints from their mail ballot vendors, the private printing companies that produce envelopes and ballot materials.

After seeing the new envelope design, Lehman said it will be difficult for Lycoming County’s vendor to print, because of the particularities of its equipment.

Ostrander said Wednesday that Washington County’s vendor was unaware of the changes until she called. The vendor is currently working to see what is feasible with its equipment, she said.

She said she is concerned that if the county is unable to follow the department’s guidance, it could be sued by outside groups.

Carter Walker is a reporter for Votebeat in partnership with Spotlight PA. Contact Carter at cwalker@votebeat.org.

Correction, Dec. 21: This article originally misstated the date of the Judge Baxter’s decision.

Pa. counties must accept undated, incorrectly dated mail ballots, federal court rules

2023-11-21T21:55:14+00:00

Votebeat is a nonprofit news organization reporting on voting access and election administration across the U.S. Sign up for our free newsletters here.

A federal court has directed Pennsylvania counties to accept mail ballots that a voter has failed to date or misdated, a long-awaited decision that could affect thousands of ballots in the upcoming 2024 presidential election.

The date a voter writes on the envelope they return a mail ballot in is “immaterial” to its eligibility, Judge Susan Baxter of the United States District Court for the Western District of Pennsylvania ruled Tuesday. Under the materiality provision of the Civil Rights Act of 1964, Baxter said ballots should not be rejected over what is essentially a technicality that isn’t related to the voter’s eligibility.

“There are many reasons to date a document,” Baxter wrote, adding, “Dates may also be wholly irrelevant, as in this case. The requirement at issue here is irrelevant in determining when the voter signed their declaration.”

The ruling in the complicated and long-running case could still be appealed within 30 days. If it stands, it means counties would no longer be forced to disenfranchise voters for failing to date their mail ballot or using a date previous courts have found to be outside an acceptable time range.

Plaintiffs including the NAACP and League of Women Voters of Pennsylvania applauded the ruling.

“Pennsylvania citizens must have complete and unfettered access to the ballot box, free from unnecessary obstacles or interference,” said Susan Gobreski, vice president of policy at the League of Women Voters of Pennsylvania. “Today’s decision is a victory for voters and the accessibility of our elections.”

The Pennsylvania Department of State said in a statement that it is “pleased with the result.”

Roughly 8,000 ballots were rejected during the 2022 midterm election for lacking a proper date or signature on the return outer envelope, according to information from the Pennsylvania Department of State. The American Civil Liberties Union of Pennsylvania estimates that number was greater than 6,000 in this month’s municipal election.

“For 2023, the impact today is that counties should count the ballots they have set aside,” Marian Schneider, senior voting rights policy counsel at the ACLU of Pennsylvania, said.

Disputes over whether to count undated or incorrectly dated mail ballots in Pennsylvania have been before the courts since the state’s no-excuse mail voting law, Act 77, passed in 2019.

That law required that voters sign and date the outer return envelope.

A 2021 case out of Lehigh County challenged the provision, citing the 1964 Civil Rights Act’s requirement that a voter’s ballot could not be rejected for reasons that were immaterial to the voter’s eligibility.

In 2022, the U.S. Third Circuit Court of Appeals unanimously agreed with the immaterial defect argument in the Lehigh case, but the U.S. Supreme Court mooted the ruling later that year, after one of the candidates in the race in question had conceded.

That left the question again up in the air ahead of the 2022 midterm election, before the Pennsylvania Supreme Court ruled on Nov. 1 that counties should not count the ballots. The court defined an incorrectly dated ballot as one that fell outside of the range of Sept. 19 through Nov. 8, 2022, the date of the election.

In practice, this has often led to counties rejecting ballots that they know were cast in the correct time period.

Jeff Greenburg, a former election director in Mercer County who now works as a senior advisor on election administration for the Philadelphia-based nonprofit Committee of Seventy, said this issue has been one of the most pressing items counties have been looking to the Legislature to resolve.

When a mail ballot is sent from a county elections office or vendor hired by the county to a voter, the date it is sent is recorded in the Statewide Uniform Registry of Electors, or SURE system. As Baxter noted in the “undisputed facts” section of her opinion, counties also know exactly when the ballot is received back by election officials, since a barcode on the return envelope is scanned to record the return date.

Voters often forget to date the return envelope, write their birthdays, or, as a Votebeat and Spotlight PA reporter witnessed in Chester County earlier this month, they write just the month and year without a day.

“Simple voter error and partial omissions related to the date declaration also resulted in rejection of mail ballots that were timely received according to their entry into the SURE system,” Baxter wrote.

Shortly after last year’s election, the ACLU of Pennsylvania, along with the NAACP and several other organizations, sued the Pennsylvania Department of State in federal court to have these ballots counted.

It is not immediately clear if the losing parties, which include the Republican National Committee, Lancaster, and Berks counties, will appeal.

“You could imagine in a presidential cycle, when the number of ballots skyrockets, tens of thousands of ballots set aside due to errors like this,” Greenburg, of the Committee of Seventy, said. “My hope is that ultimately it is resolved in time for the 2024 election.”

Carter Walker is a reporter for Votebeat in partnership with Spotlight PA. Contact Carter at cwalker@votebeat.org.

Philadelphia’s communities of color are disproportionately affected when mail ballots are rejected over small errors

2023-06-27T19:03:52+00:00

Votebeat is a nonprofit news organization reporting on voting access and election administration across the U.S. Sign up for our free newsletters here.

Mail ballot voters from heavily nonwhite and lower-income communities in Philadelphia are more likely to have their ballots rejected due to simple mistakes, compared with all voters in the city who requested mail ballots, according to a Votebeat and Spotlight PA analysis.

“It should come to no surprise that the voters who are most affected by this are the city’s most vulnerable populations,” said Nick Custodio, deputy Philadelphia commissioner for Chairwoman Lisa Deeley and a spokesperson for the office. “The Legislature must act and stop ticky-tack mistakes… from disenfranchising voters.”

By law, elections officials in Pennsylvania cannot accept mail ballots from voters who do not properly date and sign the outer return envelopes of their mail ballots. Whether to accept those undated and improperly dated ballots — such as those mistakenly using dates of birth or dates with the wrong year — is currently the subject of ongoing federal litigation.

By analyzing Philadelphia’s list of more than 1,800 voters who returned undated or improperly dated ballots for the May 16 primary and sorting them by their home ZIP code, Votebeat and Spotlight PA were able to determine how many of them live in areas where the nonwhite population or population living in poverty was above the city’s average.

To provide a comparison, we repeated the same analysis on a list of all Philadelphia voters who requested mail ballots for the primary.

The results revealed that voters making dating errors on their ballots were significantly more likely to come from ZIP codes with a higher percentage of nonwhite residents or a greater percentage of the population living in poverty than all city voters requesting mail ballots, echoing findings from a similar analysis done by Votebeat and Spotlight PA in 2022.

While roughly 44% of voters requesting mail ballots came from parts of the city with higher levels of nonwhite residents, 56% of voters who made dating errors came from such areas.

When we analyzed voters’ ZIP codes based on income levels, 34% of voters requesting mail ballots live in high-poverty areas, but 44% of voters with dating errors came from those areas.

The analysis also found that older voters are more likely to have their ballot at risk of rejection due to dating errors, similar to the findings in the 2022 analysis. While mail voters already skew older than voters as a whole, the analysis found that voters whose ballots were subject to rejection for dating errors had a median age approximately five years older than the median age of all voters requesting mail ballots.

Philadelphia publishes lists of voters whose ballots have fatal defects ahead of an election so that voters have an opportunity to fix them, a process referred to as “curing” that is not allowed in all counties.

Votebeat used the demographics of these voters’ ZIP codes because Pennsylvania’s voter roll does not contain racial information for voters, making a precise analysis of the race of specific voters in each category impossible.

However, Votebeat and Spotlight PA verified the findings through John Curiel, an assistant professor of political science at Ohio Northern University, who uses a process called Bayesian inference to estimate a person’s race based on last name and ZIP code.

Curiel’s analysis found that roughly 59% of all voters requesting mail ballots were nonwhite, while approximately 68% of voters with date errors on their ballots were nonwhite.

One such voter whose ballot was rejected is Sonja Rhett, a 55-year-old Black resident of North Philadelphia.

Rhett said she was unaware there was a dating issue with her ballot, and that if she had known, she would have tried to fix it. Her ZIP code has one of the highest percentages of nonwhite residents in the city.

“I’m upset, because if they had told me, I would have done something,” she said. The city commissioners office in Philadelphia publishes a list of voters who have flawed ballots prior to Election Day. The city notifies voters via email when possible, and political parties often use the published list to reach out as well.

When asked about the finding that voters with ballot-dating issues are more likely to live in majority nonwhite or low-income areas, she said, “I’m not surprised about anything right now.”

Eugene Williamson, a 77-year-old Black resident of Overbrook, also had his ballot flagged for rejection.

Williamson said he got a call alerting him to the problem, so then voted provisionally at his polling place. Provisional ballots are given to voters whose eligibility to vote is in question when they check in at a polling place. Provisional ballots from voters whose mail ballots were canceled are accepted by Philadelphia, but have been an issue in neighboring Delaware County.

When Votebeat shared its findings that voters at risk of having their ballot canceled due to dating issues are more likely to come from areas of the city like his with higher than average nonwhite and low-income populations, Williamson said he was not surprised.

“They try to eliminate minorities from voting, period,” said Williamson. “That’s why I put forth the effort and went to the poll.”

But Dennis Wright, a Black resident of West Oak Lane, said he takes responsibility for his ballot’s dating error.

“I’ve been voting my whole life and I’m 79 years old. And I did miss something on my ballot. So I chalk it up to that,” he said.

Legal saga continues

Whether or not to accept mail ballots with no date or improper dates has been fiercely debated in courts since practically the advent of Pennsylvania’s no-excuse mail-in voting system in 2019. The lengthy progress of various lawsuits and the courts’ decisions mean the rules for counting those ballots have changed from election to election.

During the 2020 presidential election, Pennsylvania’s Supreme Court split evenly on whether to count the ballots. A seventh justice broke the 3-3 split by ordering this universe of ballots to be accepted for the presidential election but rejected in the future. Conservatives balked at the decision and pointed to it as an example of the justices — a majority of which were Democrats at the time of the ruling — overstepping their constitutional authority to influence the contest.

Act 77, the 2019 law that introduced universal no-excuse mail voting, says ballots need to be dated. But Justice David Wecht, the deciding seventh vote in 2020, reasoned at the time that the ballots should be counted only for that election because the law was relatively new and voters may not have been well informed of the rules.

In 2021, voters in Lehigh County challenged the law in federal court under a different line of argument: claiming that the dating requirement was immaterial to a voter’s eligibility to vote, and thus those ballots could not be rejected solely on that basis under the 1964 Civil Rights Act.

The 3rd Circuit Court of Appeals sided with that reasoning in May 2022 — leading to these ballots being counted in the spring primary. But less than one month before the November 2022 midterm elections, the U.S. Supreme Court mooted that decision.

Then, with a week to go before the election, the Pennsylvania Supreme Court ruled that the ballots should not be counted, but did not address the issue of whether the dates are immaterial to the voter’s eligibility.

New litigation began almost immediately, with the American Civil Liberties Union of Pennsylvania representing the NAACP and several organizations who are suing in federal court under the same civil rights argument as the 2021 case.

That case is still pending in the Western District of Pennsylvania. As evidence of the outcome’s potentially far-reaching consequences, groups including the state GOP, National Republican Congressional Committee, and Republican National Convention have all intervened as defendants, while the U.S. Department of Justice has released a statement of interest in the case.

Policy advocates and election directors have also pointed out that the Legislature could resolve the dispute by clarifying the dating requirement in the state’s election law.

The NAACP case is still making its way through the court, but in a recent opinion rejecting a motion from the Republican interveners to dismiss the case, the court said that the NAACP, the other organizations, and the voters bringing the case had a right to have their concerns about the materiality of the date heard.

Adam Bonin, a Philadelphia-based election law attorney who has represented high-profile Democratic candidates such as Gov. Josh Shapiro, said he wasn’t very surprised by the results of the analysis.

“Ballots with errors skew Black, Latino, and older,” he said. “There’s no doubt about that.”

Bonin is litigating a similar case in the same federal district as the NAACP case, and the cases are being jointly managed. He said an expert witness submitted an analysis for his case reaching a similar conclusion.

It is unclear when a decision will come in the NAACP case, though the ACLU has said it hopes for a ruling this year.

Correction, July 3: A pervious version of this story misstated who the plaintiff was in the 2021 Lehigh County case. That lawsuit was brought on behalf of voters from the county.

Carter Walker is a reporter for Votebeat in partnership with Spotlight PA. Contact Carter at cwalker@votebeat.org

Votebeat freelancer Laura Benshoff is a reporter and audio producer in Philadelphia. She has covered local issues for WHYY, NPR, and the Center for Investigative Reporting.

This article is a part of Every Voice, Every Vote, a collaborative project managed by The Lenfest Institute for Journalism. Lead support is provided by the William Penn Foundation with additional funding from The Lenfest Institute, Peter and Judy Leone, the John S. and James L. Knight Foundation, Harriet and Larry Weiss, and the Wyncote Foundation, among others. To learn more about the project and view a full list of supporters, visit everyvoice-everyvote.org. Editorial content is created independently of the project’s donors.

Rejecting improperly dated ballots disproportionately impacts communities of color in Pennsylvania, data shows

2022-11-28T21:30:02+00:00

Pennsylvania’s policy of rejecting undated and incorrectly dated absentee and mail ballots is more likely to impact voters from communities with larger non-white populations, a Votebeat and Spotlight PA analysis of data from three urban counties has found.

Earlier this month a deadlocked Pennsylvania Supreme Court ruled that undated and incorrectly dated mail ballots should not be counted in the Nov. 8 midterm election, the latest development in a years-long dispute over these flawed ballots. Under state law, a person who casts a mail ballot must sign and date a declaration on the outer envelope.

In reaction, some counties released lists of voters who had submitted these types of flawed ballots in an effort to have them rectify the error before the end of Election Day so that their vote would be counted.

An analysis of these lists — released by Philadelphia, Allegheny County, and Erie County between Nov. 4 and Nov. 7 — found that the 3,571 voters submitting the flawed ballots were more likely to come from communities with higher than average non-white populations as compared to the voting population as a whole in the county.

“Though [the Pennsylvania Department of State] has not independently confirmed [this] analysis, if accurate, the data you’ve compiled does take a step toward confirming with empirical evidence what we understood to be the case anecdotally,” the agency said in a statement after viewing the findings. “This minor voter error appears to impact specific communities of voters more than others, including older voters, low-income voters and voters in communities of color.”

Oprah Means, a 35-year-old African-American mother of three from Duquesne, Allegheny County, was one such voter. Her ballot was rejected for having an incorrect date — defined by the state Supreme Court as falling outside Sept. 19 to Nov. 8 — and she could not recall what date she wrote that would have been disqualified. She said she was “not at all” surprised to hear there was a racial disparity among rejected ballots.

“It felt like it was done on purpose to me,” Means said, noting that her ballot had been submitted for weeks before she was informed, at 7:40 p.m. on Election Day, that there was an error. She added that by voting she was trying to also set a good example for her 19-year-old daughter.

“It felt just, like, disappointing,” she said. “The people I voted for won, but I was still upset my vote didn’t get counted.”

The disparity was clearest in Philadelphia, where voters who submitted ballots with blank or improper dates were nearly 6 percentage points more likely to come from neighborhoods that have more non-white residents than average.

Pennsylvania’s official list of registered voters, which Votebeat and Spotlight PA used for this analysis, does not contain racial demographics for each individual, making it impossible to do exact comparisons of these voters by race. Instead, Votebeat and Spotlight PA used U.S. census data by ZIP code to identify communities and neighborhoods with a higher than average percentage of non-white residents than the county.

Here’s how that data showed the 6-point disparity among voters: While 55.2% of all registered voters in Philadelphia live in ZIP codes with higher than average non-white populations, 61% of voters who submitted the flawed ballots live in such ZIP codes. (See below to read more about the methodology of this analysis.)

A similar racial disparity was also found in Allegheny County and, to a lesser degree, in Erie County. In Allegheny, which contains Pittsburgh, voters who submitted flawed ballots were also around 6 percentage points more likely to come from ZIP codes with higher than average minority populations. In Erie County, that figure was just over 2 percentage points.

John Curiel, an assistant professor of political science at Ohio Northern University, verified Votebeat and Spotlight PA’s findings using an alternative technique for estimating the races of individual voters in the three counties, based on name and ZIP code.

His analysis similarly found that there was a roughly 7 percentage point greater number of non-white voters among those submitting flawed ballots in Philadelphia as compared to the county’s voting population as a whole. Curiel’s estimates for Allegheny and Erie counties likewise found disparities that support Votebeat and Spotlight PA’s analysis, although without as strong a correlation as in Philadelphia.

Votebeat’s analysis also showed a disparity between the income levels of flawed ballot voters and the voting population as a whole in Allegheny County, but not in Philadelphia and Erie County. In Allegheny, voters submitting flawed ballots were roughly 4 percent more likely to live in ZIP codes with higher than average poverty rates as compared to the county’s voting population as a whole.

A long-standing issue

When universal mail balloting was introduced to Pennsylvania in 2019 through Act 77, the law required that voters sign and date the outer return envelope.

That portion was challenged in a 2021 case from Lehigh County as violating the 1964 Civil Rights Act’s requirement that a voter’s ballot could not be rejected for reasons that were immaterial to the voter’s eligibility.

Marian Schneider, senior voting rights policy counsel at the ACLU of Pennsylvania, said disparities related to this practice have been known as far back as that case.

“We already know that [rejecting ballots for being undated or having incorrect dates] skews older,” she said.

She said that in the Lehigh case, both sides agreed that the issue had a greater impact on older voters.

An analysis of birth years from Philadelphia and Allegheny’s data found that, in both counties, the median age of voters submitting the improperly dated ballots was slightly higher — two to four years — than those submitting properly dated ballots.

While the U.S. Third Circuit Court of Appeals unanimously agreed with the immaterial defect argument in the Lehigh case, the U.S. Supreme Court mooted the ruling earlier this year, as one of the candidates in the race in question had conceded.

That left the question again up in the air ahead of this year’s election, before the Pennsylvania Supreme Court ruled on Nov. 1 that counties should not count the ballots.

But the issue is once again headed toward the nation’s highest court. The ACLU of Pennsylvania, along with the NAACP and several other organizations, is suing the Pennsylvania Department of State in federal court to have these ballots counted. A hearing hasn’t been held yet.

Similar to the Lehigh case, the current case is making the immaterial defect argument and not arguing the practice violated the Civil Rights Act’s protection of certain classes, including race and age, from discrimination.

But Schneider said the lack of a date, or an incorrect date on a ballots, should have no bearing on a ballot’s validity, and when rules are strictly interpreted in such a way, discrimination often follows.

“Whenever you have a strict reading of election rules, it’s going to disproportionately impact low income voters and … non-white voters,” Schneider said.

How we analyzed the data

Prior to Election Day, Philadelphia, Allegheny County, Erie County, and Beaver County released lists of voters who had submitted undated or incorrectly dated mail ballots before Election Day in an effort to have them rectify the error and have their vote counted.

Votebeat used these datasets for the analysis, which means that presumably some of the ballots used for the analysis were later cured and do not represent the total figure of rejected ballots. Other undated and incorrectly dated ballots may have arrived after counties released those lists. As of Monday, the Pennsylvania Department of State did not have a statewide figure on how many such ballots were rejected.

Philadelphia, Allegheny County, and Erie County’s data included voters’ ZIP codes. We filtered the datasets to find how many voters of flawed ballots were in each ZIP code. Once this was done, Votebeat pulled the estimated percent of the population living below the federal poverty line and estimated percent of the population which was white-only, non-Hispanic for each ZIP code using the U.S. Census Bureau’s 2020 American Communities Survey.

The same process was done for the entire voting population of each county, using a voter roll acquired from the Pennsylvania Department of State on Nov. 7, 2022.

For each of the three counties, we also acquired data on the percent of the population living in poverty for the population as a whole and the percent of white-only, non-Hispanic residents for the population as a whole from the 2020 census.

Once all data was collected, we added together the number of all voters living in ZIP codes with higher than average non-white populations as compared to the county average. We also added up the number of all voters living in ZIP codes with a higher than average percent of residents in poverty compared to the county average. This was done for all three counties with both the flawed ballot and full voter roll datasets. Votebeat then compared these numbers to see if a voter submitting a flawed ballot was more likely to live in a ZIP code with a greater than average minority population or greater than average poverty.

Using a process called Bayesian Inference, Curiel, the Ohio Northern University professor, was able to estimate the races of voters in each of the three counties submitting flawed ballots. His data was then compared against 2020 race and ethnicity data for the voting population as a whole from a special tabulation of American Communities Survey data created by the U.S. Census Bureau.

Votebeat used data from 2020 across all datasets because that was the most recent data available from the voting population special tabulation.

Aseem Shukla, a data reporter with the Philadelphia Inquirer, calculated the median age of voters in Philadelphia and Allegheny who returned mail ballots with the proper dates. Those figures were then compared against the median age of voters who submitted flawed ballots in those counties.

Carter Walker is a reporter for Votebeat in partnership with Spotlight PA. Contact Carter at cwalker@votebeat.org.