PHILADELPHIA — Pennsylvania counties must segregate and not count mail ballots with missing or incorrect dates, the state Supreme Court said Tuesday, in a ruling that could affect thousands of votes in November’s midterm elections.
“The Pennsylvania county boards of elections are hereby ordered to refrain from counting any absentee and mail-in ballots received for the November 8, 2022 general election that are contained in undated or incorrectly dated outer envelopes,” the court said in its order Tuesday afternoon.
The justices said they were deadlocked, 3-3, on whether rejecting undated and wrongly dated mail ballots violates federal civil rights law. They did not immediately issue any opinions that would explain the order and said they would come later. It was not immediately clear whether the court intended to have the ballots rejected altogether, since it ordered counties to set them aside and “refrain” from counting them.
“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 said in the brief order.
Chief Justices Debra Todd and justices Christine Donohue and David Wecht, all elected as Democrats, would have found that the rejection of undated and wrongly dated ballots violates federal law. Justices Kevin Dougherty, a Democrat, and Sallie Updyke Mundy and Kevin Brobson, Republicans, disagreed.
There are normally seven justices on the high court, but Chief Justice Max Baer died in September.
The decision is the latest development in a heated political and legal fight that began with the dramatic expansion of Pennsylvania mail voting in 2020.
State law requires voters to handwrite a date on the outer envelope when returning mail ballots. But the question of whether to count or reject ballots that are received on time without a date has become complicated over the past few years.
Debates over which ballots should count — and what requirements and limitations are acceptable when it comes to voting — have been at the center of the country’s long civil rights journey.
The undated ballot fight is also a political one, too.
Democrats are much more likely than Republicans to vote by mail, so anything that gets more ballots counted or rejected has clear partisan implications. In the upcoming midterm election, for example, Tuesday’s decision will mean potentially several thousand votes for Lt. Gov. John Fetterman, the Democratic Senate nominee, and state Attorney General Josh Shapiro, the party’s nominee for governor, are held in limbo and possibly rejected.
The court ruling came in a lawsuit brought by Republican voters and groups, including the state and national Republican Parties. They asked the Pennsylvania Supreme Court to take on the issue of undated mail ballots directly, without a lawsuit first making its way through lower courts, saying the state urgently needed clarity from the high court for this election.
Each of the last four elections prompted battles over undated ballots, including a state Supreme Court lawsuit in the 2020 general election, a threat to impeach Philadelphia elections officials for moving to count undated ballots in the 2021 primary, state and federal lawsuits over Lehigh County’s treatment of undated ballots in the 2021 general, and state lawsuits in this year’s primary.
The lawsuits, in forums ranging from local county courts to the U.S. Supreme Court, had left a murky legal landscape.
Democrats, using one set of court rulings, said counties should count undated ballots. Doing otherwise, they argue would result in rejecting hundreds of votes from qualified voters who simply made a mistake in filling out their ballots.
Republicans, using another set of court rulings, said the state election code leaves no room for doubt — they must be rejected.
On Tuesday, the court deadlocked on the issue.
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