New challenge to Pennsylvania mail-ballot rules hinges on state constitutional provision

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The date that voters are required to write on their mail ballot envelope serves no real purpose and should be disregarded as a basis for accepting those ballots, lawyers argued Thursday in a pivotal case that could substantially change the rules for voting by mail in Pennsylvania. Republican lawyers, however, defended the law, saying the date could be useful in checking for vote fraud.

The state’s Commonwealth Court heard arguments in a case brought by the American Civil Liberties Union of Pennsylvania and the Public Interest Law Center, on behalf of voting-rights groups, that seeks to end enforcement of the requirement in state law that voters write the date they complete their mail ballot on the return envelope.

Thousands of voters each year have their ballots rejected because they failed to write the date, or they write an improper date. More than 4,400 were rejected for this reason in Pennsylvania’s most recent primary. The issue has been litigated continually since no-excuse mail voting was introduced in the state in 2020.

While courts have gone back and forth on the requirement, this latest challenge differs because it focuses on a previously untested theory — under a state constitutional provision — that the plaintiffs feel is much stronger than previous arguments. The case could be the last legal avenue to challenge the dating requirement. But it could also backfire and imperil no-excuse mail voting altogether, because of the way the law is written.

That provision the plaintiffs are citing in their case is a clause in the state constitution that says “elections shall be free and equal; and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage.”

“This case is about the repeated violations of the free and equal elections clause that is driving mass disenfranchisement in each election,” ACLU attorney Stephen Loney said in his opening remarks.

Does the date on an envelope matter for election administration?

Loney argued that the date on the ballot envelope is simply not relevant enough to be the reason for disqualifying a ballot. It is “unmoored to any government interest,” he said. He pointed out that in a previous lawsuit the ACLU argued in federal court, NAACP v. Schmidt, election directors from around the state agreed that the handwritten date serves no function for election administration.

Mail ballot return envelopes have barcodes on them, which are scanned to record both the time when the ballot is sent to the voter and when it is received back by the county. Counties use this method, not the handwritten date, to determine if a ballot was received on time.

So if the state can’t show that it has a compelling interest in imposing this restriction to voting, Loney argued, the free and equal elections clause bars it from rejecting ballots for that reason.

The Department of State’s attorney agreed, even though the department is technically a defendant in the case.

“No county election board in Pennsylvania uses the handwritten date for any purpose,” said the attorney, Michael Fischer, reflecting a position long held by the department, which has declined to defend the requirement in other legal cases.

John Gore, an attorney representing the Republican National Committee and Pennsylvania GOP, which intervened in the case to defend the requirement, argued that the date does serve a purpose.

Gore said the date can serve as a “backstop” measure to know when the ballot is returned in the event the system used to scan ballots malfunctions. He also said that the date could be used to determine if a ballot was fraudulently cast — for instance, if a ballot envelope comes in from a person who has died, but the date on it is after the day they died.

Gore also agreed with a line of questioning raised by Judge Patricia McCullough, one of five judges hearing the argument Thursday.

“We have rules about dating checks and other important documents,” McCullough said to Fischer earlier in the hearing. “Apparently the legislature thinks voting is important.”

Gore agreed that signing and dating of the envelope signified the “ solemnity ” of the act.

McCollough pressed Loney and Fischer on how the dating requirement was different from other requirements — like signing the envelope or placing the ballot in an inner secrecy envelope — and why the court should single out the date requirement as unenforceable.

“Unlike the date, the signature serves an important government function,” Fischer responded, explaining that it helps counties determine that the ballot returned to them was voted by the person it was sent to.

The secrecy envelope, too, serves a purpose, the Department of State and ACLU lawyers argued, which is to preserve the privacy of a voter’s selections.

In the hearing and later, Loney argued that the notion of the date requirement being a tool to guard against fraud has been repeatedly debunked.

An oft-cited example, which Loney addressed, was an instance from Lancaster County when a woman voted a mail ballot for her deceased mother, and returned it with a date written on the envelope that was after the mother had died. But Loney noted that he deposed the county’s election director about this incident during the NAACP litigation, and the director said the handwritten date was not necessary to determine the ballot was fraudulent.

Gore countered that using a handwritten date to determine if a ballot is fraudulent is important not just from the perspective of whether it should be counted, but also to provide evidence for a prosecutor looking to prove guilt.

Loney dismissed that argument.

“You might dream up scenarios where a prosecutor prosecuting voter fraud would have whatever date was written as a piece of evidence in that case,” Loney told Votebeat after the hearing. “But that doesn’t make it necessary to disqualify thousands of voters who simply trip over this requirement in every election.”

Gore declined to respond to a reporter’s questions after the hearing.

If the date requirement falls, would all of Act 77 have to go?

Another major point of contention in the hearing was whether a ruling for the plaintiffs would bring an end to no-excuse mail voting altogether.

The 2019 law that enacted no-excuse mail voting, Act 77, contained language that would void the entire law if any of its provisions are held invalid.

Republicans argued that if the court found the dating provision violated the free and equal elections clause and thus is invalid, then it would logically follow that all of Act 77 would have to go as well.

McCollough, a conservative who ran unsuccessfully for the state Supreme Court last year, appeared to agree.

“I don’t see how you get around it no matter how you couch it,” she said when Fischer addressed the issue.

Fischer and Loney argued that what the plaintiffs wanted was not strictly to “invalidate” the dating requirement, but rather a ruling that it could not be used by counties as a reason to reject a ballot.

The Commonwealth Court has previously rejected the premise that the entire law should be voided if the dating requirement is nullified.

It’s unclear when a ruling in the case will come, though Loney said the court had been moving it along swiftly thus far. A quick series of rulings in the case might resolve the issue in time to affect voting in the November presidential election.

“Everyone expects it to end up in front of the [Pennsylvania Supreme Court], no matter who wins,” he said.

Carter Walker is a reporter for Votebeat in partnership with Spotlight PA. Contact Carter at cwalker@votebeat.org