GOP appeals date ruling on mail-in ballots to Pa. Supreme Court

The Republican National Committee and Republican Party of Pennsylvania are appealing a Commonwealth Court ruling that mail-in ballots with incorrect or missing dates on their outer envelopes should be counted.

The appeal to the state Supreme Court was expected. It is being fast-tracked, like all elections cases this year.

Whatever is ultimately decided could have ramifications for the November election.

The appeal, filed Tuesday, challenges the findings of a 91-page opinion issued Friday by a Commonwealth Court panel that found it unconstitutional under state law to refuse to count those ballots.

“The Commonwealth Court majority’s decision is unprecedented, rests on multiple reversible errors and threatens to unleash chaos, uncertainty and an erosion of public confidence in the imminent 2024 general election in which millions of Pennsylvanians will vote for president, U.S. Senator, U.S. Representative and scores of state and local offices,” the Republican Party brief opens.

The filing accuses the appellate court of departing from precedent and ignoring defects in the underlying suit challenging the issue in the first place.

“[I]n order to function properly, elections must have rules, including ballot-casting rules. The judiciary may not disregard those rules, rewrite them, or declare them unconstitutional simply because a voter failed to follow them and, accordingly, had his or her ballot rejected,” the Republican Party wrote.

Witold “Vic” Walczak, the legal director for the American Civil Liberties Union of Pennsylvania, which is one of the entities representing the voting rights groups, called the Republican Party’s claims of impending chaos “unsupportable hysteria.”

“In terms of burden on elections offices, there’s none,” Walczak said.

Elections officials already have to segregate ballots with missing or problematic dates. Under the court’s ruling, it would just be a matter of counting them, Walczak said.

Date is ‘meaningless’

In May, several voting rights organizations sued Pennsylvania Secretary of State Al Schmidt and the elections boards for Allegheny and Philadelphia counties alleging that their failure to count mail-in ballots with misdated or undated return envelopes cost 10,000 people their right to vote in the 2022 election.

They argued that thousands more were impacted in this April’s primary.

Last month, the plaintiffs and attorneys representing the secretary of state told Commonwealth Court that enforcement of the date requirement violates Pennsylvania’s Free and Equal Elections Clause.

The date on the return envelope is irrelevant and serves no legitimate purpose, they said.

Mail-in ballots are time-stamped when they are received by elections offices, and they don’t determine a person’s eligibility to vote.

The Republican National Committee, which argued against the plaintiffs, said that the envelope date is required by the state legislature and that the plaintiffs, including the voters’ rights groups, lacked standing to challenge the law.

The Commonwealth Court, in a 4-1 opinion, said that precedent requires that every effort be made at saving a ballot rather than voiding it.

“As has been determined in prior litigation involving the dating provisions, the date on the outer absentee and mail-in ballot envelopes is not used to determine the timeliness of a ballot, a voter’s qualifications/eligibility to vote, or fraud,” they wrote. “It is therefore apparent that the dating provisions are virtually meaningless and, thus, serve no compelling government interest.”

65 other counties

In its appeal, the Republican Party argued that the state Supreme Court has already decided this issue, finding that voters are required to “fill out, date and sign” a mail-in ballot outer envelope.

“Because the entire declaration mandate is constitutional, so, too, is its date requirement,” the GOP wrote in its brief.

But Walczak said that the issue in the current appeal is different

“Prior to this case, no Pennsylvania court has considered the constitutional claim we’ve advanced here,” he said.

Friend-of-the-court briefs have already been filed by state Republican leaders, including Senate President Pro Tempore Kim Ward, R-Hempfield, Sen. Joe Pittman, R-Indiana, and Westmoreland County Commissioner Doug Chew, a member of the county elections board.

On the side of the voting rights’ groups, briefs were filed by the Pennsylvania AFL-CIO and dozens of county council and commission members from across Pennsylvania.

“Enforcement of an obsolete requirement has proven to disenfranchise voters, disproportionately impacting certain groups that rely on mail-in voting, like the elderly,” the county officials wrote in their brief. “Rather than serving a compelling or legitimate government interest, such enforcement is burdensome and costly to election administration,”

Chew argued that the Commonwealth Court opinion fails to address the other 65 counties in the state that were not named in the initial lawsuit.

By addressing only Allegheny and Philadelphia counties, Chew wrote, the ruling creates disparate treatment for voters across Pennsylvania.