Pa. mail ballot date requirement challenged in state court

• Jordan Wilkie/WITF
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  As the democracy reporter for WITF, I will cover any kind of story that has to do with how we govern ourselves. That will include doing a lot of election coverage about how to access the ballot, how public officials administer elections, the technology used to run and secure elections, and the laws that govern it all.
  
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 Matt Slocum/AP

A local election official organizes mail-in ballots to be sorted for the 2020 general election in West Chester, Pa.

Black Political Empowerment Project, Common Cause and seven other allied advocacy groups are suing the Pennsylvania Secretary of State and two counties in an attempt to remove the date requirement on mail-in ballots.

The case focuses on a technical requirement that Pennsylvania voters write accurate dates of when they filled out the ballot on the exterior envelope of mail-in ballots. Advocates are arguing the mandate unfairly leads to otherwise valid votes being thrown out.

State and national Republican and Democratic parties joined the lawsuit, lining up on opposite sides. 

A five-judge Commonwealth Court panel heard about two hours of argument on Thursday in a case that was filed in May. Both the state Supreme Court and the 3rd U.S. Circuit Court of Appeals have previously upheld the date requirement based on different legal challenges. 

Republicans made technical arguments for dismissing the case, like it being in the wrong jurisdiction, while Democrats supported the positions taken by the rights groups. 

They say the date requirement violates the state constitution’s Free and Equal Elections Clause, which includes “no power, civil or military, shall at any time interfere to prevent the free exercise of the right to suffrage.” 

Neither side contested that elections officials do not use the date requirement for anything other than rejecting ballots when voters make mistakes filling out the return envelope. Mail-in ballots are generally postmarked, and elections officials process and time-stamp them. The presence of the ballots themselves is enough evidence to show they arrived on time to be counted before the 8 p.m. Election Day deadline.

Among the issues before the court panel is whether throwing out a portion of the 2019 voting law that created universal mail-in voting would trigger a provision under which the entire law must also be thrown out.

None of the parties in the case addressed how a ruling could impact election outcomes. 

Sarah Niebler, associate professor of political science at Dickinson College, said her research on the 2023 primary shows more Democrats use vote by mail so more of their ballots are rejected.

That’s affected by political messaging, such as from former President Donald Trump, she said.

“Trump’s rhetoric around mail in voting has been that it’s not safe, that it’s fraudulent, all of those things, which it’s not, but he has encouraged his voters and therefore I think Republicans broadly have not tended to vote by mail at as high of percentages as Democrats,” Niebler said. 

Allegheny and Philadelphia counties, both Democratic strongholds and the only counties named as defendants  in the case, said in a legal briefing that elderly and disadvantaged voters have their ballots rejected at the highest rates. 

More than 10,000 mail ballots were rejected in the 2022 midterm elections due to mistakes in filling out the proper date. That’s a small fraction of the over 2,750,000 votes cast in that election statewide. But in some local races the number of rejected ballots was greater than the difference between who won and who placed second in a race, according to court filings. 

The Department of State redesigned the entire mail ballot package before this year’s primary in an attempt to reduce errors that led to them to be rejected. Evidence from this year’s primary shows that helped — but did not solve — the issue. The state made another redesign for the fall, filling out the year for voters so they will only have to put in the month and day they fill out the ballot. 

Niebler said she expects the party differences in mail-in ballot use will shrink over time, as it has in other states that have been using that method for longer. She also said she doesn’t like it when political parties line up on opposite sides of lawsuits over voting access. 

“Because in order for democracy to function, we need everyone to participate,” Niebler said. 

The Associated Press contributed to this story. 

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