PHILADELPHIA – Despite a recent ruling from the Supreme Court of Pennsylvania, the Commonwealth is no closer to having an undisputed answer on the validity of undated mail-in ballots.
In a Feb. 8 majority opinion (and a series of concurring and dissenting opinions), the state Supreme Court decreed that for a mail-in ballot to be properly counted, it must include the date on which the voter filled out the ballot – in accordance with current state law.
But as far as whether or not the date listed on the ballot is a proper one, the state’s high court demurred on that issue and left it up to each county’s Board of Elections.
“How county boards are to verify that the date an elector provides is, in truth, the day upon which he or she completed the declaration is a question that falls beyond our purview,” Supreme Court of Pennsylvania Justice David N. Wecht said, in writing for the majority.
“This Court having now issued guidance for the conduct of the most recent election, county boards of elections retain authority to evaluate the ballots that they receive in future elections – including those that fall within the date ranges derived from statutes indicating when it is possible to send out mail-in and absentee ballots – for compliance with the Election Code.”
A potential future consequence of such a ruling is a patchwork of policies on how to address mail-in ballots across the state of Pennsylvania, with the Board of Elections in each of its 67 counties adopting its own standards.
The ruling came on the heels of an earlier one the state Supreme Court handed down late last year, which ordered counties not to count any undated or incorrectly-dated mail-in ballots received for the mid-term elections in November – but stopped short of providing instruction to those counties for future reference.
The question of mail-in ballots has and continues to remain a hotly-debated topic in political elections and court systems across the country, often with Democrats championing the process and accepting the greatest number of legitimate ballots in spite of some procedural errors, and Republicans wanting to eschew any ballot not properly conforming to each precise detail as the law requires.
While all six members of the state Supreme Court concurred that undated ballots could not be accepted by county boards of elections, as per state law, Justices Christine Donohue and Debra Todd opined that incorrectly-dated ballots should be accepted, if they contain the voter’s signature and any date as written by the voter.
“In my view, 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,” Donohue stated.
Justice P. Kevin Brobson also authored a concurring and dissenting opinion.
“I believe the Court recognized that the date on which county boards of elections first make their mail-in and absentee ballots available to voters may not be the earliest date contemplated by the Code and may, in fact, vary from county-to-county. In future elections, then, county boards of elections may identify a narrower date range based on when a county first makes its mail-in and absentee ballots available to voters. This would be entirely consistent with this Court’s disposition,” Brobson said.
“In addition, it bears repeating that this Court’s disposition with respect to incorrectly dated ballots deals only with those ballots that are incorrectly dated on their face and thus shall not be counted under the Code. It would be wrong to interpret this Court’s disposition on this narrow point as a tacit ruling that all ballots with a facially correct date – i.e., a date that falls within the range of the possible – must ipso facto be counted. To the contrary, while a ballot that contains a facially invalid date cannot be counted, a ballot that contains a facially valid date remains subject to scrutiny under the canvassing procedures set forth [by state law].”
The instant case, Ball Et.Al v. Chapman, was initiated by a group of eight Republican voters, the Republican National Committee and the Republican Party of Pennsylvania, and sought the state Supreme Court’s relief on the question of validity as it relates to undated and incorrectly-dated mail-in ballots, with the plaintiffs arguing such ballots should not be counted.
Those parties found opposition from the Pennsylvania Department of State, which countered that the propriety of date-inclusion requirements which are a part of state law contradict the Materiality Provision of the Civil Rights Act.
The Materiality Provision ensures that laws which disqualify voters’ ballots over technicalities which are not relevant to whether or not a voter is eligible cannot be passed.
Per the state Supreme Court’s ruling last fall, the justices tied 3-3 on whether the Materiality Provision superseded Pennsylvania state law. As former Chief Justice Max Baer passed away prior to the issuance of the ruling, no seventh, deciding vote was present on the Court, as would have been normal procedure.
With the Supreme Court of Pennsylvania undecided, the question remains open.
Supreme Court of Pennsylvania case 102 MM 2022
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com