Federal judge rules that incorrectly dated mail-in ballots in PA have to be counted

Chester County, Pa. election workers process mail-in and absentee ballots at West Chester University in West Chester on Nov. 4, 2020.

Mail-in ballots in Pennsylvania that are received on time, but are not properly dated, must still be counted, a federal judge ruled last week. Voting rights groups praised the ruling, saying it will result in far fewer disenfranchised voters – especially in communities of color. 

Disqualifying those mail-in ballots — as Republicans have pushed for in Pennsylvania and nationwide — violates the federal Civil Rights Act, U.S. District Judge Susan Paradise Baxter, appointed by former President Donald Trump, wrote in her Nov. 21 ruling.

Baxter’s ruling is in response to a November 2022 lawsuit filed by six voting rights advocacy organizations against the Secretary of the Commonwealth and all county board of elections in an effort to ensure all eligible mail-in ballots were counted. Those groups filed the suit after the Pennsylvania Supreme Court in November 2022 ordered that ballots without a date on the return envelope, or with an incorrect date, remain uncounted. Pennsylvania law requires that voters sign and date their mail-in ballot’s outer return envelope.

In her ruling, Baxter noted that state elections officials do not use the date written by a voter on the outer envelope to determine when a ballot was received; rather, they use a timestamp from when the ballot is returned to county election officials. Baxter specified that the Civil Rights Act of 1964 makes clear that immaterial errors, such as an individual forgetting to write the date on the mail-in ballot’s return envelope, should not be used to disenfranchise voters.

“There are many reasons to date a document,” Baxter wrote. “Dates may also be wholly irrelevant, as in this case. The requirement at issue here is irrelevant in determining when the voter signed their declaration.”

The state Supreme Court decision in November 2022 resulted in about 8,000 Pennsylvania ballots being rejected in the 2022 midterm election and 6,000 ballots being uncounted in November’s municipal election. The majority of the Pennsylvania ballots rejected in 2022 were from Democratic voters, according to information from the state department.

Last week’s ruling, which can be appealed within 30 days of the decision, garnered praise from voting rights advocates. Defendants in the suit, which included the National Republican Committee, can appeal the ruling to the 3rd U.S. Circuit Court of Appeals. The case could ultimately make its way to the U.S. Supreme Court.

“This is a tremendous victory for mail-in voters in Pennsylvania,” Philip Hensley-Robin, executive director of Common Cause Pennsylvania said in a prepared statement. “We are relieved that minor clerical errors will no longer prevent Pennsylvanians from having their votes counted. We look forward to seeing the impact that this ruling will have on future elections, particularly for ​​communities of color and elderly Pennsylvanians.”

A Votebeat and Spotlight PA analysis of data from three counties — Philadelphia, Allegheny and Erie — discovered that the voters whose 2022 ballots were rejected due to a lack of a handwritten date on the mail-in ballot envelope were more likely to reside in communities of color.

In addition to Common Cause Pennsylvania, the other voting rights groups that filed the November 2022 NAACP v. Schmidt lawsuit to stop eligible mail-in ballots from being disqualified included the Pennsylvania State Conference of the NAACP, Black Political Empowerment Project, League of Women Voters of Pennsylvania, Make The Road Pennsylvania, and POWER Interfaith. The organizations, who were later joined in the suit by five individual voters, are represented by the American Civil Liberties Union of Pennsylvania, ACLU National and the law firm Hogan Lovells.

“The right to vote is sacred,” Ari Savitzky, senior staff attorney with the ACLU’s Voting Rights Project, said in a prepared statement issued following last week’s ruling. “This ruling ensures that Pennsylvanians who vote by mail, including senior citizens and voters with disabilities, will not face disenfranchisement because of a trivial mistake in handwriting an irrelevant date on the outer return envelope. Federal law requires nothing less, as the court’s decision makes crystal clear.”