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The Pa. Supreme Court has issued a second order on mail ballot dates as the legal fight continues

The justices on Saturday clarified what they meant when they ordered earlier this week that wrongly dated mail ballots be rejected. Meanwhile, a new lawsuit was filed in federal court on the issue.

Philadelphia mail ballots are stacked in a bin.
Philadelphia mail ballots are stacked in a bin.Read moreJessica Griffin / Staff Photographer

The scramble to figure out which Pennsylvania mail ballots to count and reject based on handwritten dates continued Saturday.

A state Supreme Court order Tuesday — that many had earlier hoped would settle the matter for this election — directed counties to reject mail ballots missing those dates as well as those where the voter put a wrong date on their ballot.

But the decision has since stirred uncertainty among elections administrators over what exactly constitutes an incorrect date and drawn new litigation from advocates who say rejecting ballots over what amounts to a mistake threatens to potentially disenfranchise thousands of legal voters.

On Saturday, the state Supreme Court unexpectedly issued an additional order clarifying its definition: Mail-in ballots are to be rejected in this election if the handwritten dates fall before Sept. 19, 2022, or after Nov. 8 (Election Day), and absentee ballots are to be rejected if they are dated before Aug. 30, 2022, or after Nov. 8.

Absentee and mail-in ballots are essentially the same, but under state law “absentee ballots” are for voters who are unable to make it to their polling places on Election Day, while “mail-in ballots” are for anyone else who chooses to vote by mail. Sept. 19 is the start of the state’s 50-day mail voting window, when counties can begin to print and send mail-in and absentee ballots. Counties treat absentee and mail-in ballots the same way and send them out at the same time.

The court’s separate time frame for absentee ballots appears to come from conflating those votes with a different kind of absentee ballot — the ones sent to military and overseas voters, known as UOCAVA for the federal law that governs them — which are sent out 70 days before Election Day, which is Aug. 30 this year.

Saturday’s order provides a specific date range for counties that had worried they would have to themselves decide what constitutes a correct or incorrect date without any instruction from the court. The order was issued on behalf of the court and not in the name of specific justices.

The order means ballots would be counted as long as they have any date within the given range — even if they are dated after the ballot was actually returned, or before the ballot was even printed.

Several lawyers immediately noted that could potentially bolster a legal argument that Democrats and voting-rights groups have made that the state’s dating requirement is merely a technicality that isn’t used to determine the legitimacy of the vote. Throwing votes out for such a technicality, they argue, violates federal civil rights law. A series of courts have considered that argument, including the state Supreme Court, which in its Tuesday order deadlocked 3-3 on it.

“While we will be carefully following the Pennsylvania Supreme Court orders, today’s supplemental order supports what I’ve always said: that a handwritten date isn’t material,” said Seth Bluestein, the sole Republican on Philadelphia’s elections board, the city commissioners. “The only thing that matters is that the declaration on the ballot envelope was signed between when ballots are sent and Election Day.”

On Friday night, a coalition of voting organizations used that argument in a new lawsuit they filed in federal court seeking to force Pennsylvania counties to accept all mail ballots that were received on time regardless of the handwritten date.

The groups argue rejecting ballots based on the handwritten date — when the date isn’t actually used for anything — will lead to the disenfranchisement of thousands of qualified voters, especially in communities of color.

“Refusing to count votes based on immaterial paperwork errors has a suppressive effect … by erecting yet another roadblock preventing them from voting and having their votes counted,” reads the lawsuit filed in Pittsburgh’s Western District of Pennsylvania.

The groups ask the court to find that “rejecting timely submitted mail-in ballots based solely on a missing or incorrect date” violates what’s known as the Materiality Provision of the Civil Rights Act. They ask the court to block counties from rejecting undated or wrongly dated ballots and prevent counties or the state from certifying the election results unless such ballots are included in those counts.

The lawsuit was filed by the Pennsylvania NAACP; League of Women Voters of Pennsylvania; Philadelphians Organized to Witness, Empower, and Rebuild; Common Cause Pennsylvania; Black Political Empowerment Project; and Make the Road Pennsylvania. They’re represented by the ACLU of Pennsylvania.

Whether to accept or reject undated ballots has been the subject of back-and-forth litigation for the last two years. While the fight over which ballots to count or reject involves legal and voting-rights questions, it is also a highly political one, especially since Democrats use mail ballots at much higher rates than Republicans in Pennsylvania. Political and legal fights have followed every election since 2020.

A half dozen state and federal courts — at every level from local county courts to the U.S. Supreme Court — have issued conflicting rulings in response to court challenges by groups on both sides of the political divide.

Earlier litigation focused primarily on the state law requirement that voters sign and date their ballots. A new wave of litigation brought the federal civil rights argument to the fore this year. A federal appeals court in Philadelphia agreed with that argument, which led a state court to follow that reasoning and order undated mail ballots counted in the May primary.

But the federal court decision was vacated by the U.S. Supreme Court last month, leading to the challenge, led by the Republican National Committee, that prompted Tuesday’s order by the Pennsylvania Supreme Court that both undated and wrongly dated ballots should be rejected.