Pa. Justices Keep Date Requirement For Mail Votes

A split Pennsylvania Supreme Court has thrown out a case challenging the requirement that mail-in ballots have a handwritten date on their outer envelopes, with a 4-3 majority ruling that a lower court lacked statewide jurisdiction since the lawsuit named only the election boards of the state’s two largest counties.

The Black Political Empowerment Project had sued Philadelphia and Allegheny counties and Secretary of the Commonwealth Al Schmidt on allegations that tossing undated ballots violated the state constitution, but without the group naming all 67 counties, the lower appellate court lacked jurisdiction to throw out the date requirement, the majority said in an order issued Friday.

“The Commonwealth Court lacked subject matter jurisdiction to review the matter given the failure to name the county boards of elections of all 67 counties, and because the joinder of Al Schmidt, in his official capacity as secretary of the Commonwealth, did not suffice to invoke the Commonwealth Court’s original jurisdiction,” the majority’s per curiam order said.

The order vacated a Commonwealth Court ruling against the date requirement. For now, Pennsylvania mail-in ballots must be returned with both a signature and the handwritten date on a section of the return envelope, where the voter attests they are qualified to vote, to be counted.

Justice David N. Wecht, in a dissent joined by Chief Justice Debra Todd and Justice Christine Donohue, said the court should have taken up the case anyway, using its special authority to elevate any sufficiently important issue from lower courts.

“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,” Justice Wecht wrote. “Therefore, I would exercise this court’s King Bench authority over the instant dispute and order that the matter be submitted on the briefs.”

Pennsylvania’s high court had previously held that the state election code makes the date mandatory, though the then-shorthanded court was evenly split over whether tossing votes with missing dates violated federal civil rights law against using minor, technical errors to disqualify voters.

A federal judge had ruled in a separate case that the date requirement violated the materiality clause since the handwritten date did not have a role in confirming a voter’s bona fides.

But a panel of the Third Circuit overturned that decision in March, with a majority finding that the materiality clause applies only to voter registration, not the act of voting itself. The challengers in that suit are appealing to the U.S. Supreme Court, with a Sept. 27 deadline to submit their formal petition.

Following the Pennsylvania Supreme Court ruling on Friday, Republican National Committee Chair Michael Whatley and co-Chair Lara Trump said in a statement, "This is a huge win to protect the vote in Pennsylvania that will secure common-sense mail ballot safeguards and help voters cast their ballots with confidence.”

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

The Republican groups defending the date requirement argued it was part of ensuring the security of the ballot, pointing to a case in Lancaster County, Commonwealth v. Mihaliak, where a woman was caught submitting her dead mother’s mail-in vote with a date that fell after her date of death but before she’d been removed from the voter rolls. However, state election officials said in their brief to the state Supreme Court that the signature alone was enough for a voter to attest to their qualifications.

“A signed, but undated, declaration is no less an affirmative statement by the voter than is a signed and dated one (and the date itself serves no further function),” the state’s brief said. “The election code clearly treats a signature alone as sufficient for the declaration to achieve its purpose, as it imposes criminal penalties on anyone who falsely signs a declaration.”

The voting rights groups opposing the date requirement lamented the ruling as a “procedural” setback and said they would continue to emphasize that all voters should pay attention and follow instructions carefully while the issue is still being litigated.

Mimi McKenzie of The Public Interest Law Center said in a statement Friday, “Thousands of voters are at risk of having their ballots rejected in November for making a meaningless mistake. We will keep fighting to keep that from happening.” 

“In the meantime, it’s more important than ever for every voter to carefully read and follow the instructions for submitting a mail-in ballot to reduce the number of ballots being rejected for trivial paperwork errors,” McKenzie said.

The Pennsylvania Department of State also released a statement Friday stating it wanted  the case to have been fully considered on the merits.

“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,” the statement said. “The department hopes that this question is answered as soon as possible, for the sake of the voters and our county election administrators preparing for the upcoming presidential election.”

The Black Political Empowerment Project and other challengers are represented by Benjamin D. Geffen and Mimi McKenzie of The Public Interest Law Center, David Bergman, John A. Freedman and James F. Speyer of Arnold & Porter, and Sophia Lakin, Stephen A. Loney, Ari Savitzky, Marian K. Schneider, Witold Walczak and Kate I. Steiker-Ginzberg of the American Civil Liberties Union.

The Pennsylvania Department of State and Schmidt are represented by Jacob B. Boyer, Aimee D. Thomson and Michael J. Fischer of the Pennsylvania Governor's Office of General Counsel.

The counties are represented by Allan J. Opsitnick of the Allegheny County Law Department, Alison Stohr of the Philadelphia Law Department and Brian H. Benjet, Ben Caldwell Fabens-Lassen, M. David Josefovits and Ilana Eisenstein of DLA Piper.

The RNC is represented by Kathleen A. Gallagher and Brian M. Adrian of The Gallagher Firm LLC, Thomas W. King III and Thomas Breth of Dillon McCandless King Coulter & Graham LLP, and Louis J. Capozzi III, John M. Gore and Edward S. Crosland of Jones Day.

The case is Black Political Empowerment Project et al. v. Schmidt et al., case number 68 MAP 2024, in the Supreme Court of Pennsylvania.

—Editing by Janice Carter Brown and Covey Son.