Pennsylvania's mail-in ballots, legal uncertainty to cause future election headaches

A moot court case won’t affect Pennsylvania’s midterm elections, but a lack of clarity about undated mail-in ballots could open the door for future lawsuits over how counties tally their votes.

On Tuesday, the Supreme Court ruled 7-2 to dismiss as moot a 3rd Circuit U.S. Court of Appeals case that approved counting Pennsylvania mail-in ballots that were undated on the return envelope. Current state law requires ballots to have a voter’s signature and date written on the envelope, outside the ballot itself.

While the ruling will not affect the result of a Lehigh County election that sparked the lawsuit, where Republican David Ritter lost to Democrat Zac Cohen after undated ballots were counted, uncertainty remains for how counties will handle undated ballots in the future.

Acting Secretary of State Leigh Chapman downplayed the ruling in a press release.

"Every county is expected to include undated ballots in their official returns for the Nov. 8 election, consistent with the Department of State's guidance,” Chapman said. “That guidance followed the most recent ruling of the Pennsylvania Commonwealth Court holding that both Pennsylvania and federal law prohibit excluding legal votes because the voter omitted an irrelevant date on the ballot return envelope.”

The 3rd Circuit’s decision, Chapman noted, was not overruled based on its merits.

“(The ruling) provides no justification for counties to exclude ballots based on a minor omission, and we expect that counties will continue to comply with their obligation to count all legal votes,” she said.

House Republicans noted the ruling aligned with current state law.

“The plain language of the Pennsylvania Election Code and the legislative intent is clear: ballots must be dated,” House Republican Caucus spokesman Jason Gottesman said in a press release. “Instead of continuing to try to legislate through contradictory and confusing guidance documents and relying on conflicting court opinions, the administration would be better spending its time working on comprehensive Election Code changes that can resolve these sorts of outstanding issues through the normal process and also bring uniformity, accessibility, modernization, and security to our elections.”

While no election laws will change to affect the November election, the ruling calls attention to difficulties for the Election Law Advisory Board, which will send recommendations to the General Assembly on how to update the commonwealth’s election laws.

The advisory board has been meeting, as The Center Square previously reported, to discuss potential changes to registration dates, drop boxes, and voter outreach efforts. They expect to have a report for the General Assembly in early 2023.

However, a divide between Republicans and Democrats on state law, and how to interpret it, remains. That divide could cause counties to treat undated ballots differently.

The Election Law Advisory Board, in its meetings, has talked of allowing counties to decide whether they want to use drop boxes for mail-in ballots as a way of deferring to local voters. Decisions on mail-in ballots matter because Democrats vote by mail in much higher numbers than Republicans.

“More than 2.5 million Pennsylvanians voted by mail during 2020′s presidential election, most of them Democrats, out of 6.9 million total votes,” the Associated Press reported. “Chapman said Tuesday that more than 1.1 million absentee and mail-in ballots have been requested for the fall General Election.”

If Democratic-leaning counties decide to count undated mail-in ballots, per the Department of State’s recommendation, it could benefit Democrats. Similarly, if Republican-leaning counties follow current election law, the loss of some undated ballots could hurt Democrats in a close race.

“Curing” ballots, where voters fix minor mistakes on a ballot, is not required in state law, but it’s not clear if state law prohibits it. State Department guidance in previous elections “instructed county elections officials to permit ballot curing” and notify voters of rejected ballots,” the Center for Public Integrity noted, and the issue could spark further lawsuits.

Until the law becomes less ambiguous, or all counties synchronize their election rules, Republicans and Democrats may remain litigious on close elections.