PHILADELPHIA — The law that created mail voting in Pennsylvania has withstood another Republican legal challenge.
The Pennsylvania Commonwealth Court on Tuesday rejected GOP arguments that recent court decisions in the ongoing legal battle over whether to count ballots with missing or incorrect dates triggered a provision that would render the broader statute, known as Act 77, invalid.
Act 77 includes a clause that says the mail voting law must be scrapped if any of its individual requirements are struck down by courts. Fourteen current and former Republican state lawmakers had contended that recent rulings calling for the counting of undated ballots had effectively invalidated the law’s requirement that voters handwrite a date on their ballot’s outer envelope and thus rendered the entire mail voting law void.
But in its unanimous opinion Tuesday, the Commonwealth Court disagreed.
Recent decisions by state and federal courts had not eliminated the dating provision in the mail voting law, wrote President Judge Renee Cohn Jubelirer. Instead, she said, those decisions merely interpreted how the provision should be applied by local elections officials.
“A court did not invalidate any part of Act 77,” she wrote.
Greg Teufel, an attorney for the Republican lawmakers, said they intend to appeal the decision to the state Supreme Court, which has previously upheld the mail ballot law in the face of two GOP challenges. That court’s Democratic majority is widely seen as supportive of mail voting.
“The (Commonwealth Court’s) reasoning will not withstand appeal,” Teufel said. “The analysis of the court turns Act 77 into a bait-and-switch.”
Tuesday’s ruling is the latest of several decisions by state courts rejecting GOP efforts to invalidate the mail voting law, which passed the state legislature with bipartisan support in 2019 but has since become a target of Republican attacks.
It also delivered the latest turn in an ongoing political and legal battle surrounding what has become a central question in the law’s implementation: whether the statute’s dating requirements mean elections administrators must reject ballots on which the voter failed to handwrite the date.
Republican groups have consistently argued, in forums ranging from county courts to the U.S. Supreme Court, that the law’s requirement is clear: Undated ballots should be rejected under state law. State courts have repeatedly agreed.
But state elections administrators, backed by the state and national Democratic parties, maintain that throwing out undated mail ballots runs afoul of federal voting rights protections and, in practice, has been nonsensically enforced. Some counties, up until recently, allowed ballots with clearly wrong dates — such as voters’ birth dates — to be counted while rejecting those with no date at all.
Every election cycle since 2020 has prompted new litigation — and, often, conflicting court rulings — seeking to settle the debate.
Last year, the U.S. Court of Appeals for the Third Circuit found that the date on the ballot envelope was immaterial to determining whether it was lawfully cast and that rejecting a ballot without one violates the voter’s federal civil rights. But that ruling, which arose out of a dispute over a 2021 judicial race in Lehigh County, was later vacated by the U.S. Supreme Court.
Cohn Jubelirer later issued a similar finding that undated mail ballots should be counted under both state and federal law in a case that emerged from the 2022 Republican primary.
But in a separate legal fight last year, the Pennsylvania Supreme Court found that state law was “unambiguous and mandatory” in saying that mail ballots returned in an undated envelope must be rejected.
However, on the question of whether that requirement violates federal voting protections, the justices deadlocked.
That decision, requiring counties to reject undated mail ballots, remains the status quo as a matter of state law, the Commonwealth Court found in its opinion Tuesday. It rejected the Republican argument that Cohn Jubelirer’s earlier finding on the federal civil rights question still stood since the Supreme Court was unable to reach a decision. Under the GOP’s reasoning, Act 77 had been fundamentally changed and thus, should be overturned.
But the fight over undated mail ballots continues.
In a pending case before a U.S. district judge in Erie, a coalition of voting rights groups represented by the ACLU has asked the court to declare once and for all that the state’s practice of rejecting undated ballots violates the civil rights of voters.
If that court — or any other hearing future challenges — agrees that the dating requirement can no longer be enforced, the Commonwealth Court suggested in its opinion Tuesday that such a decision still wouldn’t trigger the provision to throw out the entire mail voting law.
Under the court’s logic, such a ruling would merely be an interpretation of how the dating provision should be applied, not an outright rejection of it.
