Philadelphia elections officials reversed course Tuesday and rejected undated mail ballots, hours after Pennsylvania Gov. Tom Wolf’s administration said ballots must be signed and dated to count.
The move came days after top Republicans in the state House threatened the two Democratic Philadelphia city commissioners with impeachment if they moved forward to count the undated ballots.
Omar Sabir, a Democratic commissioner who voted last week to count the ballots, cited an email from the Pennsylvania Department of State in making a motion Tuesday to exclude them from the official tally instead. The motion was seconded by Al Schmidt, the lone Republican on the board, who already voted last week not to count the ballots.
Sabir said the impeachment threat played no role in his reversal, saying after the vote Tuesday that he changed his mind after consulting retired judges, election lawyers, community groups, and others. “While I still believe that the absence of dates is an inadvertent clerical error and should not be used to disenfranchise any eligible voter, I also agree that we must uphold the requirements set forth by the Commonwealth of Pennsylvania,” he said during a meeting of the commissioners.
Lisa Deeley, the Democratic chair of the commissioners, was defiant in again voting to count them. She said she was “fully informed what it meant” when she voted to do so the first time. She read the names of 61 voters whose ballots would be thrown out. She rattled off percentages showing undated ballots were a significant share of votes in poorer neighborhoods filled primarily with voters of color. And she fired back at the “morally reprehensible” impeachment threat.
“They are looking to threaten my livelihood because it fits in with their national message and goals of making it harder, not easier, to vote,” she said.
The about-face came after Jonathan Marks, a top elections official in the Department of State, sent an email to county elections administrators.
“As you know, the department updated the content and the instructions on the declaration envelope to ensure that voters know they must sign and date the envelope for their ballot to be counted,” Marks wrote, with the words sign and date in bold. “Furthermore, our updated guidance is consistent with the [state] Supreme Court’s ruling last September … wherein the Court held that in future elections a voter’s declaration envelope must be both signed and dated for the ballot to count.”
That effectively sided Wolf, a Democrat, with Republicans in an escalating confrontation that could further inflame partisan rancor in Harrisburg as Republicans seek changes to state election law and prepare to negotiate a new congressional district map with Wolf.
There were about 1,300 undated Philadelphia mail ballots for the May 18 primary, roughly 2% of the 64,000 ballots received by the deadline that night. Counting them wouldn’t have changed the outcome of any races.
The commissioners last week voted 2-1 to count undated mail ballots, with the two Democrats saying their votes to accept them were a matter of not disenfranchising voters.
“Though we share your desire to prevent the disenfranchisement of any voter, particularly when it occurs because of a voter’s inadvertent error, we must strongly urge all counties to abide by the Court’s interpretation of this statutory requirement,” Marks wrote Tuesday.
The Department of State oversees elections, but elections themselves are run by counties. The state issues guidance, while ballot counting is left to independent boards of elections in each of the 67 counties. The counties announce their official vote tallies this week before certifying the results and sending them to the department by next Monday.
“I am an independently elected official, elected to weigh facts and make decisions,” Deeley said Tuesday. “I’m not a rubber stamp.”
In a split decision last fall, the Pennsylvania Supreme Court ruled that mail ballots must be signed and dated to count. But that decision also allowed undated ballots to be counted in the 2020 election. And a local Democratic election lawyer has said there may be some wiggle room in the court’s decision, since the deciding vote, from Justice David Wecht, came with an expectation that voters would have more warning of the need to date their ballots before the next election.
Last year was the first in which any Pennsylvania voter could cast a mail ballot.
After the two Democratic commissioners voted to accept the ballots last week, top Republican lawmakers sent them letters telling them to reverse course or face impeachment.
“So there can be no misunderstanding — failure to promptly conform to Pennsylvania law will leave us no choice but to seek your removal from office using the authority vested to the House of Representatives,” the legislative leaders wrote.
Republicans on Tuesday lamented that the commissioners remained divided on the issue.
“It is disappointing it took the threat of impeachment and being corrected by the Wolf administration for the majority of City Commissioners to uphold their oath of office and follow the plain language of the Election Code,” said Jason Gottesman, a spokesperson for House Republicans. “It is also shocking today’s reversal was not unanimous given the process for how to handle undated ballots is clear in the law and backed up by Gov. Wolf’s Department of State.”
Officials in some other counties, including suburban Bucks, Chester, Delaware, and Montgomery Counties, said they were also counting undated mail ballots. A person familiar with Republican deliberations said last week that their focus was on Philadelphia for now, and “hopefully that sends a message to the rest of the counties.”
“To illustrate that this is all some political game, they were only [threatening] Philadelphia electeds, Harrisburg’s favorite bogeyman,” Deeley said Tuesday.
Deeley made clear from the start she wouldn’t reconsider her position, saying Friday, “It is unbecoming of the House Republican leaders to try and extort another elected official to change their vote.”
On Saturday, undeterred by the impeachment threat, officials opened and counted the undated mail ballots. But the ballots will now be excluded from the final results.
In voting both times to reject the ballots, Schmidt said the law and court ruling were clear.
“The law, the court, and the state have been clear that undated ballots cannot be counted,” he said Tuesday. “It’s helpful that [the Department of State] has reiterated this for the counties prior to today’s computation of the election results.”