A legal battle breaks out over the required dating of the ballot prior to the recount

At least four Pennsylvania counties are accepting and counting mail-in ballots from last week’s election that do not have the correct date printed on the envelope. This leads to a new legal conflict in a long-running dispute over how to handle these ballots.

The Republican National Committee and the Republican Party of Pennsylvania filed a lawsuit Thursday asking the state Supreme Court for an immediate ruling on the issue.

Counties are in the final stages of counting their ballots and finalizing their initial election results as they prepare for a recount in the battle for the U.S. Senate that begins next week. What counties do with ballots that are undated or incorrectly dated is a particular concern because of how close that race is. As of 4 p.m. Friday, there were fewer than 23,000 votes between Republican Dave McCormick and incumbent Democratic Sen. Bob Casey, according to results from the State Department website.

And the two campaigns are taking an active role in the dispute over which ballots should be counted.

The GOP lawsuit notes that Philadelphia, Bucks and Center counties opted to count the undated and misdated ballots. At least one other county, Montgomery, has also confirmed it is counting them after the Board of Elections voted 2-1 Thursday to approve the move.

“The problem for us is, and the reason I’m voting yes, is we’re talking about constitutional rights,” Montgomery County Board of Elections Chairman Neil Makhija said at Thursday’s meeting. “I cannot take action to throw out someone’s ballot that was otherwise validly cast on an issue that we know is not important.”

The Pennsylvania Department of State declined to say what the other 63 counties in the commonwealth are doing. Votebeat and Spotlight PA have confirmed that at least five, Allegheny, Snyder, Chester, Lycoming and Mercer, are not accepting ballots to be counted.

Republicans in their emergency petition on Thursday called on the Supreme Court to declare that the date requirement on ballots is mandatory and that counties are not allowed to count such ballots in this election.

“Unfortunately… the recalcitrant statements of these provincial authorities, issued in the aftermath of a serious crisis

contentious election that saw millions of Pennsylvanians cast their ballots and vote

their voices being heard require the Court (to act),” the Republican groups wrote.

Enforcement of the date requirement has been disputed for years

Pennsylvania election code requires voters to sign and date the outer return envelope of their ballots and return the ballot in a secrecy envelope so it can be counted.

But enforcement of the dating requirement has been under debate for years, with opponents such as the American Civil Liberties Union of Pennsylvania arguing that it is immaterial to a voter’s eligibility to vote and that rejection on that basis violates their constitutional rights . Since 2020, lawsuits have been ongoing.

The three most recent cases, both resolved in the past three months, did not bring much clarity to the issue by the state’s highest courts.

First, in August, the Pennsylvania Commonwealth Court ruled in a case brought by the ACLU and the Public Interest Law Center that the dating requirement violated voters’ right to vote under the state Constitution. But the state Supreme Court quickly invalidated that order on technical grounds, although it did not rule on the merits of the constitutional question.

After that ruling, the state Supreme Court refused to answer directly the constitutional question.

Then a special election in mid-September in Philadelphia resulted in further lawsuits over the dating requirement, and On October 30, the Commonwealth Court again ruled that the requirement violated the state constitution. However, the court said its decision did not apply to the November 5 general election.

Asked to clarify, the state Supreme Court confirmed on November 1 that the Commonwealth Court’s decision applied only to the Philadelphia special election, not the general election, and again it did not address the underlying issue of constitutionality .

Still, some counties, like Montgomery, viewed the Commonwealth Court’s ruling in the Philadelphia case as evidence that the dating requirement is unconstitutional and that undated or misdated ballots should be counted.

The Ministry of Foreign Affairs provides guidelines

Election officials have repeatedly noted that they do not use a voter’s handwritten date to determine whether a ballot was received by the deadline, which was 8 p.m. on Election Day. The return envelopes have bar codes on them that electronically record when the ballots are mailed out by the county and when they are returned.

The Pennsylvania Department of State has provided some leadership of the provinces on how to handle undated or misdated ballots, although these guidelines do not have the force of law.

The guidance advises counties to separate undated or misdated ballots — a common tactic when the legal status of certain ballots is uncertain. Citing ongoing litigation over how to handle these ballots, the department said it would update its guidance “as soon as it is able to do so.”

In the absence of a clear ruling from the state Supreme Court, these updated guidelines have still not arrived.

In Snyder County, where officials decided not to count undated or misdated ballots, Commissioner Joe Kantz said it was clear to the Board of Elections that the Commonwealth Court’s Oct. 30 ruling in the Philadelphia special election case did not apply to any other province, or at the general election.

In his suit Filed Thursday in the state Supreme CourtThe RNC and the Republican Party of Pennsylvania also argued that the Supreme Court has made clear to itself in previous rulings that undated and incorrectly dated ballots should not be counted.

They point to the court’s September decision overturning the Commonwealth Court’s ruling that the requirement was unconstitutional; a 2022 ruling in which the Supreme Court ordered that undated or incorrectly dated ballots not be counted; and the Supreme Court’s Nov. 1 order in the Philadelphia special election case.

The Republican organizations asked the court to use its authority to immediately order counties not to count the ballots.

Earlier this week, Republicans also appealed the Commonwealth Court’s ruling in the Philadelphia special election case to the state Supreme Courtasking the court to specifically assess the merits of the case.

Like the state and national Republican parties, McCormick is trying to prevent undated or misdated ballots from being counted. His campaign sued Bucks County on Wednesday And Philadelphia on Friday challenge their decision to count the ballots. That’s a turnaround for McCormick, who ran for U.S. Senate during his failed 2022 bid sued for counting undated and misdated ballots in the Republican primaries.

Casey’s campaign, meanwhile, is pushing for ballots to count.

“The Pennsylvania Supreme Court has not ruled on the merits of this case, and we agree with both the Commonwealth Court’s ruling and David McCormick’s 2022 position that invalidating incorrect and undated ballots could harm Pennsylvania voters disenfranchises because of a requirement that is not relevant in determining the eligibility of voters. ” said a statement from Casey campaign manager Tiernan Donohue.

90.5 WESA partners with Spotlight PA, a collaborative, reader-funded newsroom that produces accountability journalism across Pennsylvania. More at spotlightpa.org.