New Pa. Supreme Court opinion opens the door for a patchwork of county policies on wrongly dated ballots

The Pennsylvania Supreme Court has once again waded into the protracted legal battle over whether mail ballots missing a date or with the wrong date should be thrown out.

But while a series of opinions the justices issued Wednesday offered new clarity, they also opened the door to fresh confusion and the almost certain prospect of counties developing a patchwork of different policies over what exactly constitutes a correct date.

The ruling follows an order the court issued last fall instructing counties to set aside all undated and wrongly dated ballots for last November’s midterm. It did not issue opinions explaining the decision at the time or providing guidance to counties going forward.

The question of how to handle dates on mail ballots — state law requires voters to handwrite a date on the outer envelope — had been one of the most hotly contested legal and political fights in recent elections. In a tense status quo before last fall’s order, some counties had accepted undated ballots or ballots with any date, such as voters’ birth dates, saying it was unfair to disqualify ballots from legal voters simply because they had made a mistake.

But writing for the court Wednesday, Justice David Wecht said the dating requirement spelled out in state law is clear: For a mail ballot to count, it must be dated with the date the voter filled it out.

As for how a county should determine that the date on the ballot is the correct one, Wecht, a Democrat, wrote that that question “falls beyond our purview.” Individual county boards of elections, he said, “retain authority to evaluate the ballots that they receive in future elections.”

That means it’s likely that counties will adopt different policies on which ballots to count or reject going forward.

For instance, some counties could — as the state Supreme Court ordered in October — decide to accept all votes dated between when mail ballots are sent out and Election Day. Others could decide to closely track individual ballots through the mail and only accept those dated when in voters’ possession.

All six Supreme Court justices agreed that undated ballots should be rejected under state law, but two — Justices Christine Donohue and Debra Todd, both Democrats — split from the others on the question of incorrectly dated ballots. In a separate opinion, they said the ballot-dating requirement isn’t as clear as Wecht’s majority opinion makes it out to be.

“In my view,” Donohue wrote, “a mail-in or absentee ballot received on or before election or primary day should be counted if it is signed and bears any date affixed by the elector.”

The likely future patchwork of county policies is likely to only fuel the confusion that has made the issue the subject of more than a half-dozen lawsuits in venues ranging from county courts all the way to the U.S. Supreme Court.

In recent years, battles over mail ballots have broken along largely partisan lines, with larger, more Democratic counties aiming to accept and count as many ballots cast by legitimate voters as possible, even if they contained errors such as lacking a date on their outer envelopes. Many Republican counties, though, sought to throw out ballots with various deficiencies, citing state law requirements or security concerns.

The state Supreme Court has ruled on some of these questions before. In a split 2020 decision, three justices said undated ballots should be rejected; three justices said undated ballots should count; and the seventh justice said undated ballots should be rejected in the future but allowed in that year’s presidential election.

But confusion over how counties should apply that fractured ruling led to a flurry of subsequent litigation in state and federal courts that resulted in competing and contradictory rulings last year.

The case that prompted Wednesday’s Pennsylvania Supreme Court ruling stemmed from a suit the state and national Republican Parties had brought asking the justices to declare that both undated and wrongly dated ballots should be rejected statewide.

The Pennsylvania Department of State, which administers voting, pushed back, arguing that the dating requirements in state election law run afoul of federal law.

Specifically, it cited what’s known as the Materiality Provision of the Civil Rights Act, which bars states from enacting laws to throw out ballots over technical errors that have no bearing on determining whether a person is an eligible voter.

In its October ruling, the six-justice court said it had deadlocked 3-3 on whether the Materiality Provision meant federal civil rights law overrode the state law requirement. On Wednesday, the justices detailed their disagreement.

Three justices — Wecht, Donohue, and Todd — concluded that no matter what the election code may require, the Materiality Provision protects those votes from being thrown out.

Justices Kevin Brobson and Sallie Updyke Mundy, both Republicans, and Democrat Kevin Dougherty disagreed. The court normally has seven justices, but then-Chief Justice Max Baer died shortly before last fall’s ruling.

Because the court was evenly divided on the issue, the question of whether the state laws violate the Civil Rights Act remains unresolved.

That fight is ongoing. In its latest iteration — a lawsuit brought last fall in federal court by the NAACP, ACLU, and several other advocacy groups — lawyers hope to have clarity before the May 18 primary election.

In the meantime, Allegheny County is counting ballots from three special elections held Tuesday. A spokesperson said the county was still reviewing the opinions.