Mail ballots are sorted and counted in Lehigh County, Pennsylvania.
Matt Smith / For Spotlight PA
Pa. county election officials react to mail-in ballot decision
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Ben Wasserstein/WITF
Matt Smith / For Spotlight PA
Mail ballots are sorted and counted in Lehigh County, Pennsylvania.
Around 112 undated or misdated ballots were set aside in Dauphin County after the Nov. 7 election.
But late last Tuesday, county solicitors Joe Curcillo and Fred Lighty called Jerry Feaser, director of Dauphin County’s Office of Elections and Voter Registration, to say they could be counted.
The change comes after a decision in U.S. District Court for the Western District of Pennsylvania that says undated or misdated ballots must be accepted.
Feaser said the confusion over counting mismarked ballots comes as a result of the changes to voting from Act 77.
One of the changes was that, when voting by mail, people have to sign and date an envelope. That requirement led to the lawsuit filed by a group of organizations including the Pennsylvania State Conference of the NAACP and Common Cause Pennsylvania asking that courts clarify whether an undated or misdated ballot should be counted.
That lawsuit was filed Nov. 4, 2022 but the federal court didn’t decide it until after the 2023 election.
“Prior to Act 77, which included the mail-in ballots, Dauphin County would have counted ballots that were just signed, you know, the envelope for the voter’s signature,” Feaser said. “That was it. If they didn’t date it, we still counted it.”
Act 77 allowed anyone to vote by mail instead of only those meeting certain requirements, such as a military service member who is overseas. That form of voting exploded during the COVID-19 pandemic when many abstained from in-person voting over the risk of catching the virus.
Though the law does not explicitly say ballots should be thrown out if there is a discrepancy on the dateline, Feaser said he and his team listened to their solicitor’s interpretation.
While Democrats requested more mail-in ballots than Republicans, the issues with dates was split fairly evenly between parties, Feaser said. The decision to count the mismarked ballots did not impact the results of any races.
The office started to set ballots aside after a state Supreme Court ruling said that undated ballots should not be counted.
“Because there was a litany of litigation over various aspects of ballots,” Feaser said. “We decided at the time we would receive ballots, as best we could, segregate those ballots that had issues identified, such as no signature, no date, wrong date, no privacy envelope.”
The closest race in Dauphin was for county commissioner, in which Democratic candidate Justin Douglas won with a final margin of 184 votes, though his victory was declared almost a week prior.
In Philadelphia, 1,329 ballots were received with no dates and 288 with incorrect dates.
Lisa Deeley, Chairwoman of the Philadelphia City Commissioners, said the federal court’s decision that those ballots should be counted would help disenfranchised voters.
“The timing of this ruling couldn’t have come at a better time as now over 1600 Philadelphia voters will have the opportunity to have their voice heard in this election,” Deeley said.
Lancaster County, which had 285 undated or misdated ballots, certified votes Nov. 21.
Other counties, including Berks, Montgomery, Philadelphia and Chester, chose to delay certification of the results in order to count the votes.
Berks County’s election board decided to delay certification Nov. 27. Those votes won’t be certified until the week of Dec. 4 at the earliest, according to Stephanie Weaver, assistant director at the Berks County Office of Election Services.
Feaser said he doesn’t anticipate the court’s decision having much of an impact on the 2024 Presidential election unless there is an appeal to the decision.
The complaint to the district court was filed in November 2022 after the state Supreme Court’s ruling.
Feaser said the timing of the decision had an impact this year, and any rulings over election codes should be done prior to people heading to the polls.
Philadelphia County Deputy Commissioner Nick Custodio said the lateness of the decision was a factor in the decision to delay certification.
“Had the ruling come out before Election Day, then everybody would have known the rules going into it,” he said.
Philip Hensley Robin is executive director of Common Cause Pennsylvania, a plaintiff in the case.
“I think that’s the main thing to take away from this [is] that this really shouldn’t be a partisan issue,” he said. “This is about making sure that valid votes are counted, regardless of who casts them.”
In a statement, the Department of State said it was pleased with the court’s decision.
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