The Pennsylvania Supreme Court ordered Tuesday that county boards of elections segregate and “refrain from counting” mail-in ballots with missing or incorrect dates on the outer envelope.
The Court is split on the question of whether invalidating ballots based on an incorrect or missing date violates the “materiality provision” of the Civil Rights Act, which a circuit court found last year. According to the order, the Democratic justices find that invalidating those ballots would violate federal law and the Republicans do not. The Supreme Court nullified the circuit court’s decision as moot earlier this month, opening the door to attempts to toss the ballots.
The Pennsylvania court is down to six members after its chief justice died suddenly earlier this month.
“We hereby direct that the Pennsylvania county boards of elections segregate and preserve any ballots contained in undated or incorrectly dated outer envelopes,” the court wrote.
It is not immediately clear if the justices are blocking the votes from being counted at all, or just separating them out for now.
An opinion is to follow.
Voters write the date in question on the outer envelope, not on the ballot itself. The Third Circuit Court of Appeals found that whether that date is missing or incorrect has no bearing on whether the voter is qualified to cast the ballot, not least because the county board of elections would still have to receive it in time to count, no matter what the voter wrote. Otherwise, a simple mistake in writing the date would disqualify a valid ballot.
The Supreme Court, at the behest of an unsuccessful Republican primary candidate, nullified that Third Circuit decision earlier this month. Justice Samuel Alito, in a separate filing, had tipped his cap by calling it “very likely wrong.” The Republican organizations followed his lead and filed a lawsuit in state court.
Republican campaign organs asked the Pennsylvania high court to order that the incorrectly dated or undated ballots be tossed. Short of that, they asked that they be separated out until a decision could be made.
The Republicans’ calculation here is nakedly political, as Pennsylvania Democrats voted by mail much more than their Republican counterparts in 2020. That pattern is bearing out again: so far, 71 percent of absentee ballot applications were submitted by Democrats, per Bloomberg.
“Petitioners’ last-minute attempt to disrupt and inject chaos into an active electoral process would not only nullify months of preparation by elections officials and political campaigns for the November election, but it would disenfranchise entirely lawful voters,” wrote the Democratic campaign counterparts in a filing.
Read the order here: