The ongoing saga of whether mail-in ballots without the proper date on the external envelope should or should not be counted may not yet be over, but Pennsylvania’s Supreme Court on Thursday sought to clear up confusion about its Sept. 13 decision on the matter.

As far as the high court is concerned, mail-in ballots in Pennsylvania without a date on the outside envelope —  even if returned to a county election office on time — should not be counted.  

Last week the court threw out a Commonwealth Court ruling that the ballots should be counted. Voter rights groups tried to revive the case, but in response to a request by the Republican National Committee (RNC) to clarify its ruling, the Supreme Court ordered the Commonwealth Court to dismiss the lawsuit.

So to recap: This means, for now, that mail-in ballots returned without a date on the outside of the envelope will not be counted in the Commonwealth of Pennsylvania.

The American Civil Liberties Union of Pennsylvania, which represents the voter rights groups, said it is considering its next legal steps.

“This is not the end of the road on this issue,” spokesperson Andy Hoover said Thursday.

With a month and a half before the presidential election in which Pennsylvania is expected to play a pivotal role, a former top election official told the Capital-Star that voters need to simply ignore the noise of the lawsuits and closely follow the instructions on their mail-in ballots.

“What’s most important is voters need to just understand that they need to put today’s date on the envelope,” Former Pennsylvania Secretary of the Commonwealth Kathy Boockvar said. 

Notice and cure suit from RNC derided as voter suppression

Meanwhile, lawyers for the ACLU of Pennsylvania and the Public Interest Law Center (PILC), decried a new lawsuit filed Wednesday by the RNC as a brazen attempt at voter suppression. 

The RNC asked the state Supreme Court to rule on the legality of county policies to notify voters when their mail-in ballots have errors and give them a chance to correct them.

Vic Walczak, legal director of the ACLU of Pennsylvania, said the RNC lawsuit is an attempt at an end run around two other cases pending before state appeals courts that involve the potential disenfranchisement of tens of thousands of people who vote by mail.

“The law right now is that counties can do what they call ‘notice and cure,’” Walczak said in a call with reporters on Thursday. “They don’t have to, so it’s permissive. What this lawsuit seeks to do is to say that it is absolutely illegal.”

The ACLU of Pennsylvania and PILC also represent the plaintiffs in the other election law cases still pending.

Walczak said the notice-and-cure suit, which asks the Supreme Court to exercise its “king’s bench” power to take any case at any time without going through the lower courts, doesn’t allege that the practice of notifying voters to fix their errors is problematic.

“It’s just an argument over the language in the statute. And just like the statute doesn’t say that you are allowed to do this, the statute and the Election Code don’t say that you can’t do this,” he said.

Gates McGavick, senior advisor to RNC Chairperson Michael Whatley, dismissed the ACLU’s characterization of the lawsuit.

“The idea that widely-supported [sic] election integrity safeguards somehow constitute ‘voter suppression’ is a far-left conspiracy theory,” McGavick said in a statement to the Capital-Star.

A spokesperson for former President Donald Trump’s campaign and a lawyer for the RNC did not respond to interview requests Thursday.

Voting by mail without an excuse was first an option for Pennsylvania voters in 2020 and in every election since, candidates have challenged decisions by county boards of elections either to count or not count ballots with errors, such as missing or incomplete dates and missing secrecy envelopes. 

The number of mail-in ballots that have been disqualified for such errors is not trivial. Despite efforts by the Pennsylvania Department of State to reduce the number of rejected ballots by redesigning the instructions and envelopes, more than 1% of mail ballots were rejected in the April primary election, according to one analysis.

In the latest case on undated ballots, the Commonwealth Court ruled on Aug. 30 that the dating requirement violates the state constitution’s guarantee of the right to vote because it serves no compelling governmental purpose.

The Supreme Court ruled Sept. 13 in an appeal by the RNC and state Republican Party that Commonwealth Court lacked jurisdiction to hear the case because the suit was filed against only Allegheny and Philadelphia counties. Pennsylvania’s other 65 counties should have been included as parties for the Commonwealth Court to exercise its statewide jurisdiction.

But the Supreme Court’s order didn’t explicitly say whether the case was dismissed or was being sent back for further proceedings. Commonwealth Court Judge Ellen Ceisler granted the ACLU and PILC permission to file papers arguing that they should be allowed to add the other 65 counties. 

Ceisler also indicated that she expected to reissue her decision finding the dating requirement unconstitutional.

In a 2-1 decision earlier this month, a Commonwealth Court panel reversed a Butler County judge’s decision that county elections officials were not required to count the provisional ballots because it amounted to allowing the voters to correct or “cure” mistakes in their mail-in ballots, which is not required by the Pennsylvania Election Code. 

In an opinion for the Commonwealth Court majority, Judge Matthew S. Wolf wrote the question of whether the Election Code requires election officials to count provisional ballots cast by voters whose mail-in ballots are fatally flawed is separate from the issue of whether curing flawed ballots is allowed.

Wolf said the majority interpreted the Election Code to give it the legislature’s intent that provisional ballots serve as a safeguard against voters being denied their votes or casting more than one vote.

“The General Assembly did not intend for those authorized provisional ballots to be rendered meaningless … whenever the elector has made an earlier but unsuccessful attempt to cast or vote a ballot,” Wolf said.

The issue of curing ballots was itself the subject of a decision by a judge in Washington County in southwest Pennsylvania.

Washington County Judge Brandon P. Neuman granted an injunction sought by voting rights groups to block a policy that the county Board of Elections adopted just before the April primary, of not informing voters if their ballot was rejected because of an error.

The groups claimed the policy disenfranchised voters by effectively hiding from them the fact that their votes would not be counted and denying them the opportunity to cast provisional ballots. Neuman found voters have a statutory right to challenge a decision not to count a mail ballot and ordered election officials to notify voters whose mail ballots are set aside for disqualifying errors so that they have a chance to mount a challenge.

The state GOP and RNC have also appealed the decision in Commonwealth Court.

Other counties, meanwhile, have adopted policies to notify voters and give them a chance to remedy errors on mail-in ballots. Dauphin County, which includes the state capital of Harrisburg, last week became one of at least 32 Pennsylvania counties with a notice and cure program, according to the ACLU of Pennsylvania.

(This article was updated at 10:05 p.m., Thursday, Sept. 19, 2024, to include a statement from the RNC.)