Pennsylvania’s highest court on Friday threw out a lower-court ruling that would have required election officials in the state’s two most-populous counties to count otherwise valid mail-in ballots that had the incorrect date or no date at all on the outer envelope.
In a brief, two-page order, the Pennsylvania Supreme Court declined to rule on the merits of the case, which was brought by a coalition of voters’ rights groups. Instead, it found that the lower court, the Commonwealth Court of Pennsylvania, lacked jurisdiction in its order last month because the lawsuit named only Philadelphia and Allegheny Counties, and not all of the state’s 67 counties, as defendants.
Friday’s ruling means that state election officials will not be counting misdated or undated ballots in the general election unless the courts decide to intervene again between now and Nov. 5. The plaintiffs could file a new lawsuit that tries to address the jurisdiction issue, but whether they will do so is unclear.
Three of the court’s seven justices dissented, writing that the State Supreme Court should have exercised its special jurisdiction as Pennsylvania’s highest court to decide the case because “a prompt and definitive ruling” on the date question “is of paramount public importance.”
In a statement, a spokesman for the Pennsylvania Department of State called the ruling “disappointing,” saying that it “leaves unanswered the important question of whether the dating requirement violates the Pennsylvania Constitution, as the Commonwealth Court found.”
The ruling could have a substantial impact on the presidential race in the battleground state. With about seven weeks to go until the election, most polls show Pennsylvania to be a tossup between Vice President Kamala Harris and former President Donald J. Trump. President Biden won the state by just over 81,000 votes in 2020.
State election officials disqualified nearly 16,000 mail-in ballots for irregularities in April’s primary election. Almost half were disqualified because of issues like missing signatures and wrong dates on outer envelopes. In July, Al Schmidt, Pennsylvania’s secretary of state, directed counties to print ballot-return envelopes with the full year so that voters would have to fill in only the month and day.
The state Republican Party, which had appealed the case to the State Supreme Court and argued that enforcement of the date requirement was legal, did not immediately respond to a request for comment on Friday.
The fight over the date rule stems from Act 77, a 2019 state law that allows all Pennsylvanians to cast their votes by mail. The law requires voters to “date and sign” the back of the outer envelope that holds the “secrecy envelope” containing their ballot. While the statute doesn’t specify what to do about ballots with missing or incorrect dates, courts have ruled in the past that misdated ballots should not be counted.
The Commonwealth Court of Pennsylvania had ruled last month that using an undated or incorrectly dated envelope as the basis for throwing out otherwise timely and eligible ballots would violate a State Constitution clause guaranteeing “free and equal elections” and pose a “substantial threat of disenfranchisement.” Friday’s ruling vacated that decision.
“Thousands of voters are at risk of having their ballots rejected in November for making a meaningless mistake,” said Mimi McKenzie of the Public Interest Law Center, one of the firms representing the plaintiffs.
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