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Philly will count undated mail ballots the Pa. Supreme Court said should be thrown out

The court ruling may leave room for interpretation, but Philadelphia's decision could nevertheless invite further scrutiny or even litigation.

Workers count Philadelphia mail ballots for the May 18 primary election.
Workers count Philadelphia mail ballots for the May 18 primary election.Read moreJOSE F. MORENO / Staff Photographer

Philadelphia elections officials will count mail ballots from last week’s primary election that arrived in envelopes without dates, despite a Pennsylvania Supreme Court ruling that undated ballots be rejected.

The decision isn’t expected to change the outcome of any races, and one local election lawyer described the court ruling as leaving room for interpretation. But the decision could nevertheless invite further scrutiny or even litigation, just months after the days-long counting of mail ballots in Pennsylvania’s largest city attracted a national spotlight in the final days of a close presidential election.

Philadelphia received about 1,300 undated mail ballots for the May 18 primary, about 2% of the 64,000 mail ballots received by the deadline that night.

“For me, this is an issue of enfranchising vs. disenfranchising,” Lisa Deeley, chair of the Philadelphia City Commissioners, the office that runs elections, said before voting to accept the ballots. “Failure to add a date is a minor technicality, otherwise the voter did everything right. Nobody is alleging fraud.”

She was joined by fellow Democrat Omar Sabir. Al Schmidt, the lone Republican commissioner, voted to reject the ballots, saying he disagreed with the law and the court’s ruling but had to uphold it. That marked a partisan split on the elections board, which last fall presented a united front in rejecting false claims of widespread voter fraud from then-President Donald Trump and his supporters.

The state Supreme Court ruled in November that undated ballots be counted for the 2020 election. Three justices interpreted state election law to allow counting undated ballots, while three justices said the law didn’t allow it. The seventh, Justice David Wecht, was the deciding vote, saying undated ballots should be counted in 2020 but rejected in the future — once voters had better instructions about dating ballots and the consequences for failing to do so.

Last year was the first in which any Pennsylvania voter could cast a mail ballot.

“I cannot say with any confidence that even diligent [voters] were adequately informed as to what was required to avoid the consequence of disqualification in this case,” Wecht wrote of the undated 2020 ballots in his opinion. “… It would be unfair to punish voters for the incidents of systemic growing pains.”

» READ MORE: It didn’t need to take that long: What Pennsylvania’s election could have looked like with earlier counting

Wecht’s opinion raises the question of whether voters this year had the “adequate instructions” and “sufficient warnings” that he deemed necessary, said Adam Bonin, a Democratic election lawyer in Philadelphia.

“Justice Wecht’s controlling opinion left room for this,” Bonin said. “How can you evaluate whether the wording was sufficient other than to say one in 50 voters who tried to vote by mail couldn’t cast a valid ballot for this one reason? ... Justice Wecht clearly assumed that this would be fixed by this spring, and the best piece of evidence that we have on this — which is did voters get it? — is that this wasn’t fixed.”

Election policies and procedures are often something of a patchwork across Pennsylvania, since elections are run at the county level. It’s not clear how many of the state’s 67 counties accepted or rejected undated ballots in last week’s primary. In the Philadelphia suburbs, Bucks County had 120 mail ballots with date issues but did not reject them, an official there said.

The pandemic and high turnout in the presidential race strained county elections offices as officials rushed to build a robust mail voting system. Administrative growing pains and ambiguity in some parts of the law contributed to a flood of litigation, as did Trump’s false claims of a stolen election.

» READ MORE: Pennsylvania Republicans make an opening bid for election changes: ‘We have a god-awful’ law

This year, the Pennsylvania Department of State redesigned mail ballot envelopes, simplifying them and removing information that courts said isn’t required, such as a field for voters to list their addresses. It left the signature and date fields, which the court ruled are mandatory under state law.

“Yet, because of one justice’s opinion, the date is still on the envelope,” Deeley said. “I believe, the same way I believed in November, that we should not punish these voters, who did everything else right, from having their votes counted due to a minor technicality. Furthermore, since the Supreme Court allowed these to count in November, we should stay consistent so as to not confuse the voters.”

Sabir said he was concerned about voter confusion and about rejecting ballots from legal voters.

“People died for the right to vote. So for us not to count those votes, it wouldn’t sit well with my conscience,” he said in an interview after the decision.

But Schmidt said the law and the high court’s ruling are clear, and he voted to reject the ballots even though he would like to count them.

“I had no choice but to vote to not count those ballots,” Schmidt said in an interview. “It’s our job to uphold the law, not to interpret it. That’s what the Supreme Court has already done.”

Many of the commissioners’ decisions are made unanimously, but Schmidt has disagreed with his Democratic colleagues before, including about whether to count or reject mail ballots with various defects last year.

Schmidt made clear Wednesday that he doesn’t disagree personally with Deeley and Sabir that the undated ballots should be allowed.

“I would rather not have had to vote the way that I did,” Schmidt said, “but the law is clear and the Supreme Court is clear.”