Skip to content
Link copied to clipboard

The Supreme Court just undid a key ruling for counting undated Pennsylvania mail ballots

The ruling involves a case about just 257 undated mail ballots from last year’s November election. But its impact might be far greater.

Chester County elections workers preparing mail ballots for processing during the 2020 vote count.
Chester County elections workers preparing mail ballots for processing during the 2020 vote count.Read moreJOSE F. MORENO / Staff Photographer

The U.S. Supreme Court on Tuesday invalidated a lower-court decision that had allowed undated mail ballots to be counted in Pennsylvania, injecting new uncertainty into election rules that could affect thousands of votes next month.

The order is almost certain to prompt new lawsuits over an issue that has become a consistent political and legal fight over the last two years, and it immediately ignited a new round of disputes over what the decision meant. Republicans have sought to throw out undated mail ballots that arrive on time but without a handwritten date on their outer envelopes as required by state law. Democrats have fought to count them.

But Tuesday’s decision didn’t address the substance of that debate. It instead vacated a May decision by the U.S. Court of Appeals for the Third Circuit on procedural grounds, leaving unresolved the central question of whether elections officials should count undated ballots.

Amid that uncertainty, both sides rushed to interpret the ruling’s practical effects.

The Pennsylvania Department of State, which oversees elections as part of Democratic Gov. Tom Wolf’s administration, said it expects counties to count undated ballots, citing a series of state court rulings earlier this year. Republicans said counties should reject undated ballots, citing state election law and a differing set of state court rulings.

What is an ‘undated’ mail ballot?
Pennsylvania election law requires voters to sign and date the outer envelope when using mail ballots. Counties accept any handwritten date — voters sometimes write, for example, birthdates — as long as the ballot is received on time. The “undated” mail ballots in question are those that are received on time, without other defects that would lead them to be rejected, but have no handwritten date.

The question of whether such ballots will be counted in the critical November midterm elections will likely return to the courts — and be vigorously fought over — in the coming weeks.

And because Democrats are much more likely to vote by mail than Republicans, a decision to count undated ballots is likely to mean hundreds or potentially thousands more Democratic votes get counted — while a decision to reject them would benefit Republicans.

What the Supreme Court did — and didn’t do

The case at issue in Tuesday’s order involved 257 undated mail ballots in a 2021 judicial race in Lehigh County. But the case has been widely cited by state elections administrators — and at least one state court — to support the argument that undated ballots should be counted in all races.

In deciding the case in May, the Third Circuit ruled that state law’s dating requirement was a technicality used to unfairly throw out votes. Because any dates on ballot envelopes — even incorrect ones — are accepted, the court said, whether or not a ballot has a handwritten date is immaterial and shouldn’t be used to exclude votes cast by otherwise eligible voters.

» READ MORE: Federal appeals court says undated Pa. mail ballots should be counted, a decision that breaks with state courts and could have immediate impact

As a result of that ruling, Lehigh County counted the undated ballots in the 2021 race, certified the results, and declared a winner — all before the U.S. Supreme Court could rule on the appeal.

In situations where there’s no longer an active controversy before the high court, its practice is to void lower-court decisions to prevent rulings from becoming precedent without a chance for appeal.

The justices’ one-paragraph order vacating the case did not address the legal arguments of the case and offered no explicit insight on where they might have landed on those questions. But some indications have emerged.

Justices Sonia Sotomayor and Ketanji Brown Jackson said Tuesday they disagreed with their colleagues’ decision to accept the case and vacate the earlier ruling.

Meanwhile, Justice Samuel A. Alito, in a written dissent during an earlier stage of the case, said the lower court’s ruling was “very likely wrong” and could affect the outcome of November’s elections. Justices Clarence Thomas and Neil Gorsuch joined him in that opinion.

State courts have weighed in, too, and it’s complicated

With the most significant federal court ruling on undated ballots now vacated, both sides were quick to point to recent rulings in state courts to back up their views — though, even there, the answers remain unclear.

Republicans cite a 2020 split ruling by the Pennsylvania Supreme Court, in which four of the seven justices said state law requires undated ballots to be rejected, given that election statutes specifically include a handwritten date as one of the requirements.

However, one of those four justices — David N. Wecht — said they should be counted in the 2020 election but rejected in all elections going forward. That means there is not a single majority opinion of four justices that explicitly says undated ballots must be rejected.

Since then, lower state courts have used that Pennsylvania Supreme Court case to throw out undated ballots.

Democrats point to a more recent series of decisions from the Commonwealth Court.

In a case that arose from the May primary fight between Republican U.S. Senate candidates Mehmet Oz and David McCormick, the court’s president judge, Renée Cohn Jubelirer, described the practice of rejecting undated ballots as a potentially unjust restriction of the right to vote.

In a subsequent decision — issued after a handful of counties still refused to count undated ballots from the May primary — she reiterated that stance, ruling that they should be counted as a matter of both federal and state law.

“[T]he lack of a handwritten date on the declaration on the return envelope of a timely received absentee or mail-ballot does not support excluding those ballots from the Boards’ certified results under both Pennsylvania law and … the [federal] Civil Rights Act,” she wrote.

» READ MORE: Pennsylvania court orders end to primary election stalemate: Count the undated mail ballots

What does the future hold? Expect more fighting and litigation

But while Republicans see the state Supreme Court’s decision in 2020 as binding precedent, saying the bottom line is that four justices interpreted state law as requiring dates on ballots, Cohn Jubelirer disagreed.

In her second opinion this summer, she found that the state high court’s 2020 decision was not binding because of the fractured nature of the court. What’s more, she said, the justices had not been fully apprised of how arbitrarily the ballot dating requirement was being applied — for instance, by allowing ballots with the wrong date to be counted.

Still, the case she laid out for counting undated ballots isn’t precedential, either, so neither of her opinions is binding on any other court likely to consider the issue.

The Pennsylvania Department of State issued guidance last month telling counties to count undated mail ballots. The department maintained that position Tuesday.

“Every county is expected to include undated ballots in their official returns for the Nov. 8 election, consistent with the Department of State’s guidance,” acting Secretary of State Leigh M. Chapman said in a statement, citing Cohn Jubelirer’s ruling.

Whether counties will do so remains to be seen. Counties run elections and are not bound by state guidance.

Adam Bonin, a Democratic lawyer in the Lehigh County case, said Tuesday’s decision was “disappointing,” but said Cohn Jubelirer’s recent decisions mean undated ballots should still be counted this November.

Josh Voss, a Republican lawyer on the other side of the case, disagreed. Because the Third Circuit had upended the legal landscape in May, he said, the Supreme Court’s decision was simply a return to the proper status quo — which he argued means undated ballots should be thrown out, as they had been in recent elections.

The only thing all sides could agree on — the only certainty at this point — is that the fight over undated mail ballots will continue.