John Fetterman’s Pa. Senate campaign is suing to have undated and misdated ballots counted

Lt. Gov. John Fetterman’s campaign for U.S. Senate has joined the legal fight over whether mail ballots with no date or the incorrect date should be counted in Tuesday’s election.

The Democratic campaign sued Pennsylvania elections officials Monday asking a federal judge to order that all mail ballots be counted regardless of what date, if any, voters wrote on the outside of the envelope.

State law requires that voters handwrite a date on the outer envelope when returning their mail ballots, and the Pennsylvania Supreme Court ruled last week that undated and wrongly dated mail ballots be set aside and not counted. The court issued a follow-up order Saturday setting specific date ranges that the handwritten dates must fall within.

There will likely be tens of thousands of undated and wrongly dated ballots rejected statewide under that ruling. Because mail ballots are so disproportionately used by Democrats over Republicans, that will likely mean thousands, if not tens of thousands, of net votes for Fetterman that are rejected.

Fetterman is locked in a tight race with celebrity doctor Mehmet Oz, the Republican nominee, a contest that will help determine which party controls the Senate. And in a campaign that polls suggest is neck-and-neck, every vote counts.

The Fetterman campaign sued in federal court in Pittsburgh, joined by the the Democrats’ U.S. House and Senate campaign arms, as well as two Democratic voters in Erie County who submitted undated mail ballots. They argue that the handwritten date requirement is a technicality and not used to determine whether votes were legally cast.

» READ MORE: Your voter’s guide to the Nov. 2022 election in Pennsylvania

Throwing out ballots over such a technicality, they argue, violates federal civil rights law.

”The date [requirement] imposes unnecessary hurdles that eligible Pennsylvanians must clear to exercise their most fundamental right, resulting in otherwise valid votes being arbitrarily rejected without any reciprocal benefit to the Commonwealth,” their lawsuit reads.

Rejecting ballots because of the date requirement also violates the First Amendment and the Fourteenth Amendment. Under the latter, the Democrats argue, “a state cannot utilize election practices that unduly burden the right to vote.”

The question of whether undated ballots should be counted has been one of the main legal and political fights in recent elections, and the subject of more than a half-dozen lawsuits in venues ranging from county courts all the way to the U.S. Supreme Court.

After the state Supreme Court ruling last week that counties set such ballots aside, a coalition of voting rights groups filed their own suit in federal court in Pittsburgh on Friday. Their argument is essentially the same, using what’s known as the Materiality Provision of the Civil Rights Act to argue that counties shouldn’t be able to throw out undated or wrongly dated ballots.

That argument has succeeded before.

A federal appeals court in Philadelphia agreed in a different case earlier this year that rejecting ballots violates the Materiality Provision, which led a state court to order undated mail ballots counted in the May primary.

But the federal court decision was vacated by the U.S. Supreme Court last month. That led the Republican National Committee to sue over the issue, resulting in last week’s Pennsylvania Supreme Court order that both undated and wrongly dated ballots be rejected.

The federal court in Pittsburgh has not yet set a hearing for either the Fetterman suit or the one filed by voting rights groups Friday.