Voting rights groups file lawsuit to prevent some mail-in ballots from being disqualified

Voting rights groups in Pennsylvania are suing state and local election officials in an effort to prevent mail-in ballots that are received in time but are not properly dated from being disqualified in November’s presidential election.

The American Civil Liberties Union of Pennsylvania, the Public Interest Law Center and the Arnold & Porter Kaye Scholer law firm on May 28 filed the suit in state court against Pennsylvania Secretary of State Al Schmidt and the Philadelphia County and Allegheny County boards of elections. Filed on behalf of a range of voting rights organizations, including the League of Women Voters of Pennsylvania and Common Cause Pennsylvania, the suit argues that rejecting a ballot because the envelope lacks a date handwritten by the voter has an incorrect date violates the state Constitution.

Pennsylvania has required voters to handwrite the date on their mail-in ballot’s external envelope since 2020, after Democratic Gov. Tom Wolf signed 2019 Act 77, a state law passed with bipartisan support that expanded mail-in voting opportunities in the commonwealth. Since the enactment of that law, voting rights groups have sued to end restrictions on mail-in voting. In March, the U.S. 3rd Circuit Court of Appeals ruled that ballots without the handwritten date on the external envelope should not be counted, striking down a lower court’s ruling that disqualifying improperly dated ballots violates the Civil Rights Act.

“Pennsylvania should be making it easier to vote, not more difficult,” Mike Lee, the executive director of the ACLU of Pennsylvania, said in a prepared statement announcing the lawsuit. “This arbitrary handwritten date requirement has already disenfranchised tens of thousands of voters in the commonwealth. With such high stakes in the 2024 election, Pennsylvania counties must do everything they can to ensure that every vote is counted.”

Voting rights advocates say the date requirement for mail-in ballots has caused significant confusion among voters, leading to ballots being thrown out despite arriving at election offices on time. As part of the lawsuit filed on May 28, several Pennsylvania residents submitted sworn declarations describing their ballots being rejected.

Joanne Sowell, a 76-year-old Pittsburgh resident, said she received an email notifying her that her ballot in the 2024 primary election would be rejected for an incorrect date. She was on an airplane and headed for a cruise vacation when she saw the email and wasn’t able to address the mistake or vote provisionally.

“When I returned from my trip, the returned ballot was waiting at my house, but it was too late to fix it,” Sowell wrote in her declaration, according to a statement from the ACLU. “I am very upset that my ballot will not count because nobody’s ballot should get rejected for a trivial paperwork mistake.”

Throwing out the ballots poses a significant danger to democracy, plaintiffs said.

“Rejecting thousands of mail-in ballots due to minor date errors is an unjust barrier that undermines our democracy,” Maria Delgado-Santana, the president of the League of Women Voters of Pennsylvania, said in a prepared statement. “Every Pennsylvanian deserves to have their voice heard in free and fair elections, without being silenced by bureaucratic technicalities.”

In response to criticism about the date requirements for mail-in ballots, Democratic Gov. Josh Shapiro’s administration redesigned mail-in ballot materials in an effort to more clearly explain the requirements. That redesign went into effect in April’s primary election.

The Pennsylvania Department of State did not respond to a request for comment from the Pennsylvania Independent, but Ellen Lyon, the deputy director of communications for the department, wrote in an email to the Pennsylvania Capital-Star: “In the years of litigation over this issue, it has become irrefutably clear that the handwritten date serves no function in the administration of Pennsylvania’s election. As a result, the Department has consistently argued in court that voters should not be disenfranchised for failing to write or incorrectly writing a date that serves no function.”

Ensuring every ballot is counted is especially critical during the presidential election in November, in which Pennsylvania is expected to play a major role, those involved in the lawsuit said. The commonwealth has 19 electoral votes, making it the country’s largest swing state in the 2024 election cycle. President Joe Biden defeated Trump in Pennsylvania in 2020 by 80,555 votes.

More than 16,000 mail-in ballots were disqualified by county election officials during the November 2022 midterm election because they lacked proper signatures, dates or secrecy envelopes, the Associated Press reported, and the majority were from Democratic voters.

A disproportionate portion of the rejected ballots came from older voters, the ACLU noted in a press release. In the 2022 general election, Philadelphia voters over the age of 50 cast 72% of the mail-in ballots and were responsible for 81% of mail-in ballots that were rejected for clerical errors.

“Refusing to count a person’s vote because of a minor technicality undermines fair elections by disenfranchising voters who deserve to have their voices heard,” Diana Robinson, the co-deputy director of Make the Road Pennsylvania, said in a press release. “Who among us hasn’t miswritten the date? It’s a common error that hardly disqualifies an eligible voter. If your ballot is received on time, the date written on the paper is irrelevant.”