Undated and misdated Pennsylvania ballots may not be counted in November after court ruling

Thousands of undated and wrongly dated mail ballots expected to be cast in November’s election could be thrown out after the Pennsylvania Supreme Court on Friday overturned a lower court ruling ordering these votes be counted.

In a 4-3 ruling, the state high court justices threw out that earlier decision last month in which the Pennsylvania Commonwealth Court ballots could not be rejected under a provision of state law that requires Pennsylvania voters to hand write the date on the outer envelope of their ballots for it to count.

But the justices did not engage with the lower court’s reasoning — that the law unfairly disenfranchised otherwise eligible voters — and instead vacated its ruling on procedural grounds, citing defects in how the case was originally filed.

The reversal, which comes less than two months before Election Day and just days before mail ballots could start going out in the critical swing state, delivered the latest turn in a long-running legal back-and-forth that has left the fate of ballots missing dates or dated incorrectly in question election after election.

But Friday’s court ruling may not be the last word. Separate legal challenges to the state’s dating requirement remain pending before a federal judge in Western Pennsylvania and the U.S. Supreme Court.

Pennsylvania Supreme Court Justice David Wecht, in a dissent from his colleagues’ ruling Friday, questioned their decision to overturn the Commonwealth Court without a full briefing, and said it was high time the matter was settled for good.

”A prompt and definitive ruling on the constitutional question presented in this appeal is of paramount public importance inasmuch as it will affect the counting of ballots in the upcoming general election,” Wecht, a Democrat, wrote in a statement that was joined by Chief Justice Debra Todd and Justice Christine Donohue, both Democrats.

The court‘s four other justices — two Democrats and two Republicans — made up the majority.

In a statement Friday, the Pennsylvania Department of State echoed Wecht’s sentiment, and said it hoped the issue would be resolved as soon as possible.

“Today’s decision is disappointing and leaves unanswered the important question of whether the dating requirement violates the Pennsylvania Constitution, as the Commonwealth Court found,” Geoff Morrow, a spokesman for the department, said.

Voting rights groups — including the American Civil Liberties Union and the Public Interest Law Center, which originally brought the lawsuit the state high court resolved Friday — have long sought to get rid of the date requirement, arguing it serves no purpose, as election administrators don’t use the written dates to determine whether a vote was cast on time. More importantly, they argue, the requirement results in the rejection of thousands of votes each year which were otherwise legally cast.

The Republican National Committee and Pennsylvania Republican Party have fought to retain the date requirement, arguing it would be improper for the court to reject requirements put in place by the state legislature.

In its ruling last month, the Commonwealth Court agreed that the dating requirement served no compelling governmental purpose and tossing undated ballots infringed upon state protected voting rights. It ordered election boards across the state to enforce the requirement only when it was necessary to prevent voter fraud.

The state Supreme Court did not engage with the reasoning behind the lower court’s decision as it overturned that ruling Friday.

Instead, the court majority said the Commonwealth Court lacked the jurisdiction to issue its ruling and that the parties who’d brought the suit needed to have sued elections officials in all of the state’s 67 counties. (Their original lawsuit only named Pennsylvania Secretary of State Al Schmidt and the Boards of Elections in Philadelphia and Allegheny Counties as defendants.)

Steve Loney, supervising attorney for the ACLU of Pennsylvania, said he disagreed with the court’s decision and was disappointed the justices had declined to resolve the issue. He said the organization would continue working to eliminate the date requirement before the election.

The ACLU is representing some of the plaintiffs pursuing ongoing litigation in the federal courts over whether the disqualification of votes for missing or incorrect dates violates the U.S. Voting Rights Act.

Still, the Republican National Committee, which had led the appeal before the Pennsylvania Supreme Court decided, hailed Friday’s ruling as a victory.

“The Keystone State will be absolutely critical in this election, and the Supreme Court has decided a major victory for election integrity,” RNC Chairman Michael Whatley said in a statement.

State and local officials had sought to minimize the number of ballots rejected in the April primary through newly designed envelopes that filled out part of the date for voters, leaving them to finish the rest.

But the envelopes did not fully solve the problem. In Philadelphia, more than 400 ballots were rejected in the primary election because they were undated or incorrectly dated. Statewide, nearly 8,000 ballots were rejected for issues with the date, signature or privacy envelope.