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Pennsylvania’s top election officials urged the state Supreme Court to rule before the presidential election Tuesday that voters should not be disenfranchised for forgetting to put the date on their mail-in ballots.
In a brief filed Friday morning, the Pennsylvania Department of State joined voting rights groups and the state and national Democratic parties in their calls to uphold a lower court’s ruling that the date requirement infringes on Pennsylvanians’ fundamental rights to vote.
The department, led by former Republican Philadelphia City Commissioner Al Schmidt, argued that in addition to protecting voters’ rights, upholding the ruling that the date requirement should not be enforced would reduce work and eliminate uncertainty for poll workers.
Granting a request by the Republican National Committee and Republican Party of Pennsylvania to delay enforcement of the lower court ruling would also not prevent additional challenges to decisions by county elections boards about which ballots to count, the department said.
“It is almost always better to address questions about which ballots will be counted before an election, when the impact on the results cannot be known,” the department’s brief said.
The case is the latest in a long string of lawsuits and appeals seeking a conclusive ruling on the issue, which has disenfranchised thousands of voters and delayed results in every election since 2020, when voting by mail without an excuse first became an option.
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It follows a 3-2 decision by a Commonwealth Court panel on Wednesday in a lawsuit by two Philadelphia voters that the requirement to date the envelopes is unconstitutional because it denies the right to vote because of minor and inconsequential errors and serves no compelling governmental purpose.
That ruling largely tracked an Aug. 30 decision by the Commonwealth Court that the Supreme Court threw out because of a procedural error. Earlier this month, the Supreme Court denied a request to revisit the issue by voting rights groups led by the American Civil Liberties Union of Pennsylvania and the Public.
In its Oct. 5 ruling, the Supreme Court said the risk of confusing voters with a change in voting rules was too great.
“This Court will neither impose nor countenance substantial alterations to existing laws and procedures during the pendency of an ongoing election,” the unsigned order said.
Chief Justice Debra Todd filed a dissenting statement in which she argued that voters and election officials need guidance in the upcoming election.
“We ought to resolve this important constitutional question now, before ballots may be improperly rejected and voters disenfranchised,” Todd said.
In the case now before the Supreme Court, voters Brian Baxter and Susan Kinnery sued the Philadelphia Board of Elections after their mail-in ballots were among 69 set aside during special elections for state House seats because they had missing or incorrect dates.
A Philadelphia judge ruled in favor of Baxter and Kinnery that the ballots should be counted and the elections board appealed. The two voters were represented by the American Civil Liberties Union of Pennsylvania and the Public Interest Law Center, which also have asked the Supreme Court to decide the case before Election Day in favor of counting undated ballots.
In the opinion for the Commonwealth Court majority, Judge Ellen Ceisler concluded, as the court did in its August decision, that various courts have established that the handwritten date serves no purpose and thus disqualifying ballots without the date deprives voters of a fundamental right and is unconstitutional.
“We cannot countenance any law governing elections, determined to be mandatory or otherwise, that has the practical effect in its application of impermissibly infringing on certain individuals’ fundamental right to vote,” Ceisler said.
The Department of State said that it agreed with the Supreme Court’s position on the potential for late changes in voting rules to disrupt election administration or confuse voters, but it added “not all changes to election procedures are the same.”
“The requirement that county boards set aside mail ballots with declaration-date errors — and particularly the requirement that they set aside mail ballot envelopes with ‘incorrect’ dates — imposed a significant burden on county boards. Election workers must manually review every ballot envelope to determine whether it has a ‘correct’ date,” the brief said.