In a ruling that supports state and national Republican groups, the Pennsylvania Supreme Court ruled on Tuesday that counties are not to count any ballots that are incorrectly dated or not dated at all in the upcoming November 8 midterm elections.
According to the order, “The Pennsylvania country boards of elections are hereby ORDERED to refrain from counting any absentee and mail-in ballots received from the November 8, 2022 general election that are contained in undated or incorrectly dated outer envelopes.” The order went on to add, “We hereby DIRECT that the Pennsylvania county boards of elections segregate and preserve any ballots contained in updated or incorrectly dated out envelopes.”
While opinions on the decision will be forthcoming, the order shows that the six judges were split down the middle on whether or not counting the wrongly dated ballots would violate 52 U.S.C. section 10101 (a)(2)(B) which is a voting provision under the Civil Rights Act of 1964 that states, “no person acting under color of law shall deny the right of any individual to vote in any election because of an error or omission on any record or paper relating to any application, registration, or other act requisite to voting, if such error or omission is not material in determining whether such individual is qualified under State law to vote in such election.”
Three of the judges, all Democrats, said that they would find a violation of the law if the ballots were thrown out based on requiring a date, while the remaining three judges, one Democrat and two Republicans said they would not find a violation if the ballots were thrown out due to a lack of a correct date. The panel of six judges should have been seven, however, Chief Justice Max Baer died in September.
The ruling stemmed from a joint lawsuit filed by the Republican Party of Pennsylvania, the Republican National Committee (RNC), and the National Republican Congressional committee (NRCC), in October to block undated mail-in and absentee ballots from being counted – regardless of whether or not they were received on time.
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In addition to the lawsuit, the groups filed a petition for an expedited review which, if granted, would allow the lawsuit to bypass the lower courts and be heard by the Supreme Court instead. The request was granted on October 21 indicating that the Court saw the issue as important and in need of an immediate resolution.
State law requires that Pennsylvania voters handwrite the date on the outer envelope when submitting a ballot by mail. The date on the outer envelope is not used to determine whether or not a ballot was submitted on time as the ballots are required to be time-stamped when they are received by county offices.
With the midterm elections less than a week away, the order is set to effect immediately.