Pennsylvania’s highest court directs counties not to count undated ballots

Pennsylvania’s highest court has directed counties not to count mail-in ballots that lack a handwritten date. It was deadlocked on whether or not counting the ballots would violate federal law. 

The move provides some clarity on how county election workers should handle mail-in ballots in the upcoming midterm elections, but may also signal the beginning of a torrent of legal action centered around Pennsylvania’s election system, some legal experts predict. 

In an order published just a week out from Election Day, the Pennsylvania Supreme Court deadlocked on the legality of counting mail-in ballots, while unanimously ordering county election officials not to count ballots that lack a handwritten date or are improperly dated in this year’s midterm elections. 

In the two-page order, the Court also ordered county election officials to keep undated ballots separate from those that are properly dated. The Court did not immediately release opinions.

The Court was down one justice following the death of Chief Justice Max Baer in September, and was split on whether undated ballots violate federal law. 

The case was brought by the Republican National Committee, the National Republican Congressional Committee, the Pennsylvania Republican Party and individual voters, who asked the Court to enforce language in the state’s Election Code that requires voters to date the outer envelope containing their ballot. 

Lawrence Tabas, the chair of the Pennsylvania Republican Party, called the ruling a “tremendous win for election integrity.” Republican leaders in the state House of Representatives also celebrated the Court’s decision, saying it reaffirms the date requirement included in the state’s chief election law. 

“Dates matter, and the dating of important documents has been a critical tool in officiating the legality of documents for centuries,” House Speaker Bryan Cutler and House Majority Leader Kerry Benninghoff said in a joint statement. “We thank the Pennsylvania Supreme Court for re-confirming what we have said all along: Pennsylvania’s election law is undeniably clear that mail-in ballots and absentee ballots must be correctly dated to be valid,” they added. 

The Pennsylvania Department of State, which previously urged counties to count all ballots – dated and undated – encouraged voters to follow instructions included with their mail-in ballot. 

“We are reviewing today’s order, but the order underscores the importance of the state’s consistent guidance that voters should carefully follow all instructions on their mail ballot and double-check it before returning it,” the department issued in a public statement.   

Even though the state’s highest court has weighed in on the issue, legal experts suggested Wednesday that the order is only the beginning of a potential flood of legal actions that could hover over the state’s midterm elections. 

Tom Vanaskie, a former judge on the U.S. Court of Appeals for the Third Circuit – who was appointed by former President Barack Obama – told reporters that the Court’s 3-3 split on the legality of counting undated ballots means the issue remains unresolved.

“They punted. They divided 3-3 on the question that the Third Circuit had resolved – that is that it would be a denial of the right to vote if the ballots were not counted. So, that remains an open issue,” Vanaskie said on Wednesday.

Other aspects of election law could get challenged, as well, particularly in the state’s race for U.S. Senate between Democratic Lt. Gov. John Fetterman and Republican Dr. Mehmet Oz, which polls indicate could be close. 

Former Middle District Court Judge John Jones III, who was appointed by former President George W. Bush, said he could foresee federal litigation filed in relation to the state’s U.S. Senate race, suggesting that the state Supreme Court may have ordered counties to set undated ballots aside in anticipation of future lawsuits.

“I almost think that that is a recognition on the part of the Pennsylvania Supreme Court that those ballots were still going to be in play based on the potential federal litigation,” Jones said. 

Such an effort could mirror the legal battles between former GOP Senate candidate Dave McCormick and Oz, the eventual Republican nominee, who feuded over undated ballots back in May. 

Both Vanaskie and Jones said they expect lawsuits to continue to play a role in future election cycles. “I think we can expect lawsuits to continue, but they're going to deal with the interplay between federal legislation and the state law,” Vanaskie said. “The state law seems pretty clear.”

But until the judicial branch resolves gaps between state and federal voting laws, Jones said a flurry of election lawsuits could become the norm – if it isn’t already. 

“We're litigating everything election-related today, so stay tuned, because there will certainly be more,” he said.