A month after Pennsylvania’s Supreme Court ruled undated mail-in ballots can’t be counted in the November election, two Delaware Valley election boards want the U.S. Supreme Court to reverse that decision.
“Pennsylvania county boards of elections do not use the date on mail ballot outer declaration envelopes. Accordingly, the error or omission is not ‘material’ as defined by the statute: the date is irrelevant to the voter’s qualifications and, in fact, cannot be used to determine the timeliness of a ballot,” wrote attorneys for Philadelphia and Montgomery Counties’ Election Board members.
The Allegheny County Board of Elections joined the request.
Mail-in voting was drastically expanded during the COVID-impacted 2020 election, during which the state Supreme Court allowed more ballot drop-off locations—a decision defended by then-Attorney General Josh Shapiro (D).
In 2022, the state Supreme Court ruled ballots needed to be dated or they would be “invalid as a matter of Pennsylvania law.” Justices were deadlocked on whether incorrectly dated ballots should be counted.
Plaintiffs, including the ACLU, took their suit to federal court.
They received a victory last year, when U.S. District Judge Susan Paradise Baxter said the ballots should be counted. “The date on the outside envelope was not used by any of the county boards to determine when a voter’s mail ballot was received in the November 2022 election,” she wrote.
Baxter based her decision on the Materiality Provision found in the 1964 Civil Rights Act. That provision said the right to vote cannot be denied because of an “error or omission” on records or paper about an “application, registration, or other act” involved in voting, so long as it did not determine whether someone is qualified to vote under state law.
The Third Circuit Court of Appeals reversed Baxter’s ruling earlier this year. “The Materiality Provision is concerned only with the process of determining a voter’s eligibility to vote,” argued the justices.
The judges believed the rules allowed states to set the rules for registered voters to “cast a valid ballot,” instead of who was eligible to vote. “We hold the date requirement for casting a mail-in ballot is now covered by … the Materiality Provision,” they wrote.
Liberal groups appealed to the U.S. Supreme Court in September. They suggested the Third Circuit’s ruling made it easier for counties to keep Keystone State residents from casting mail-in ballots.
“Because the rule adopted below limits the statute’s application to voter registration forms only, it would be useless in preventing new forms of in-person vote denial based on polling place paperwork—some of the very types of barriers that Congress meant to sweep away when it passed the Materiality Provision in the first place,” wrote ACLU and NAACP attorneys.
They hoped the Supreme Court would send the case back to Baxter’s court.
While the federal court case played out, a similar legal battle was waged in Pennsylvania.
More than five dozen voters in Philadelphia sued in September because their undated and incorrectly dated absentee and mail-in ballots were not counted in a special election.
Not only did a trial judge agree, but so did a divided Commonwealth Court in late October after Republicans appealed.
The state Supreme Court felt otherwise. A unanimous court ruled the Commonwealth Court’s decision was “stayed and shall not be applied” to last month’s General Election.
Democrat Justice Kevin M. Doughtery accused the lower court of changing the game “on the very eve of the election.” He said mail-in ballots had already been shipped and returned with residents and poll workers informed of how to handle undated and misdated ballots.
The state Supreme Court reinforced its decision on Nov. 18 when asked by outgoing Democrat U.S. Sen. Bob Casey’s campaign. Casey wanted undated and incorrectly dated ballots counted in his loss to Republican Dave McCormick.
“[M]ail-in and absentee ballots that fail to comply with the requirements of the Pennsylvania Election Code SHALL NOT BE COUNTED for purposes of the election held on November 5, 2024,” ruled the justices.
Now, the Boards of Elections from Montgomery, Philadelphia, and Allegheny Counties want the U.S. Supreme Court to wade in on the Materiality Provision.
“This case [is] an excellent candidate for resolving whether the scope of the statute applies in the mail ballot context; this might not be the case in future litigation, where the parties might contest the ‘materiality’ of some other requirement at issue,” wrote the Boards of Elections.
It isn’t known when the U.S. Supreme Court could decide on whether to take up the case.
