Pennsylvania appeals court rules timely mail ballots with improper dates should be counted

A Pennsylvania appeals court ruled Wednesday that the state constitution prohibits the disqualification of timely mail ballots because of a missing or improper date.

Though the 3-2 majority stressed its decision only concerns 69 rejected votes in a special election last month — which will have no impact on the outcome — it ushers in new uncertainty surrounding mail ballot rules on the eve of next week’s presidential election.

The dispute could now head to Pennsylvania’s top court, which previously rejected an effort to count undated and improperly dated mail ballots because of procedural issues with the lawsuit.

Both campaigns view Pennsylvania as a must-win battleground, with polling indicating a tight race that could be impacted by any change in which ballots are deemed proper.

The Republican National Committee (RNC) has gotten involved in the legal fight, hoping to prohibit ballots with date issues from being counted.

State data shows that nearly 2.2 million Pennsylvanians have requested a mail ballot. In Philadelphia alone, nearly 400 mail ballots have been rejected so far for having a missing or improper date, according to data from the Philadelphia board of elections.

The Pennsylvania Commonwealth Court ruled that the state constitution’s free and equal elections clause commands that the ballots still be counted if they are received timely because the dating error is “meaningless.”

“To look at a mail ballot that substantially follows the requirements of the Election Code, save for including a handwritten date on the outer envelope declaration, and which also includes a timestamped date indicating its timely receipt by the voter’s respective county board of elections by 8:00 p.m. on Election Day, and say that such voter is not entitled to vote for whomever candidates he or she has chosen therein due to a minor irregularity thereon ‘is to negate the whole genius of our electoral machinery,’” the court’s opinion reads.

Two members of the five-judge panel dissented. Judge Matthew Wolf warned that the decision will cause confusion and put the Pennsylvania Supreme Court in a “near-impossible position.”

“We are now six days before said election,” Wolf wrote. “Despite the crystal-clear directive from our Supreme Court, this Court is now handing down a sweeping constitutional decision disposing of an issue of first impression to settle the counting of votes that will not impact the outcome of a past special election, but which will cause a significant sea change in the election processes effectuated by the county boards.”

Judge Patricia McCullough similarly dissented: “This Court once again has unnecessarily hurried to change the mail-in voting rules in Pennsylvania, this time mere days before the consummation of a hotly contested general election.”

The lawsuit was filed by two voters whose ballots were improperly denied in a special election last month for two state House races.

“This decision upholds the fundamental right to vote of Pennsylvanians. Refusing to count someone's vote because of a meaningless paperwork mistake is contrary to common sense and basic American values,” Ari Savitzky, senior staff attorney with the American Civil Liberty Union’s Voting Rights Project, which represented the voters, said in a statement.